The Sins of Hosanna-Tabor - Scholarly Commons @ UNLV Law

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Scholarly Commons @ UNLV Law
Scholarly Works
Faculty Scholarship
2013
The Sins of Hosanna-Tabor
Leslie C. Griffin
University of Nevada, Las Vegas -- William S. Boyd School of Law
Follow this and additional works at: http://scholars.law.unlv.edu/facpub
Part of the First Amendment Commons, Labor and Employment Law Commons, and the
Religion Law Commons
Recommended Citation
Griffin, Leslie C., "The Sins of Hosanna-Tabor" (2013). Scholarly Works. Paper 780.
http://scholars.law.unlv.edu/facpub/780
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The Sins of Hosanna-Tabor
LESLIE C. GRIFFIN*
The Supreme Court has lost sight of individual religious freedom. In
Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Courtfor the
first time recognized the ministerial exception, a court-createddoctrine that holds
that the First Amendment requires the dismissal of many employment
discrimination cases against religious employers. The Court ruled unanimously
that Cheryl Perich, an elementary school teacher who was fired after she tried to
return to school from disability leave, could not pursue an antidiscrimination
lawsuit againsther employer.
This Article criticizes Hosanna-Tabor as a profound misinterpretation of the
First Amendment. The Court mistakenly protected religious institutions' religious
freedom at the expense of their religious employees. Religious employees have been
subjected to disabilities discrimination, sexual harassment, unequal pay, hostile
work environments, age discrimination, pregnancy discrimination, gender
discrimination, race discrimination, assault, retaliation, national origin
discrimination, tortious interference with contract, blacklisting, intentional and
negligent infliction of emotional distress, and breach of contract.Instead of having
a day in court to win or lose their cases, they have been barredfrom litigation by
the ministerialexception, a rule that always grants victory to the employer.
This Article explains the flaws in Hosanna-Tabor's reasoning and questions its
presuppositionthat religious institutions are constitutionallyentitled to disobey the
law. It defends a neutral interpretationof the First Amendment over the Court's
favoritism toward religion and explains how the antidiscriminationlaws can and
should be appliedto religious organizations.
INTRODUCTION
..................................................
........ 982
I. CHERYL PERICH V.HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCHAND
SCHOOL
...........................................
......
....... 984
II. A MISTAKEN READING OF HISTORY AND MINISTERS ...............
..... 988
III. RECONCILING EMPLOYMENTDIVIsIoN V.SMITH......
.........
........ 992
IV. FIRING EMPLOYEES FOR NONRELIGIOUS AND PRETEXTUAL REASONS ............ 994
A. RELIGIOUS AND NONRELIGIOUS REASONS FOR EMPLOYMENT ACTIONS .996
B. RELIGIOUS PRETEXT
.......................................
...... 999
V. WHO IS A MINISTER?.................................................
1006
A. MINISTRY IS ALWAYS A THEOLOGICAL QUESTION .......
........... 1006
B. THE BREACH OF CONTRACT EXCEPTION..........
C. THE TORTIOUS CONDUCT EXCEPTION
CONCLUSION
................
.........................................
.................. 1010
...........
1013
..........
1016
t Copyright C 2013 Leslie C. Griffin.
* William S. Boyd Professor of Law, University of Nevada, Las Vegas William S.
Boyd School of Law, leslie.griffin@unlv.edu. The author filed an amicus brief for Cheryl
Perich in the Supreme Court on behalf of sixty-three law and religion professors. My thanks
are due to Angela Carmella, Anita Bernstein, Jessica Roberts, Marci Hamilton, Bryan Fair,
June Carbone, Aaron Bruhl, Matt Mantel, Mark Strasser, and the faculties of Arizona,
Capital, Houston, Howard, Seton Hall, and UMKC law schools for their help with the
arguments in this paper.
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INTRODUCTION
The Supreme Court has lost sight of individual religious freedom. Consider the
case of Cheryl Perich, an elementary school teacher at Hosanna-Tabor Evangelical
Lutheran Church and School, a K-8 school in Redford, Michigan. The school's
personnel manuals stated that she, like any other schoolteacher, was protected by
employment discrimination laws.1 As the 2004-2005 school year approached,
Perich suddenly and unexpectedly became ill. When she tried to return to class
from disability leave, the school suggested that she voluntarily resign. Perich
refused and was fired after she threatened to talk to the Equal Employment
Opportunity Commission (EEOC) about a disabilities discrimination lawsuit. She
then sued Hosanna-Tabor under the antiretaliation provisions of the Americans
with Disabilities Act (ADA). 2
The Supreme Court unanimously denied Perich her day in court. In HosannaTabor Evangelical Lutheran Church & School v. EEOC,3 the Court ruled that the
First Amendment requires a "ministerial exception" to the employment laws. The
ministerial exception is a court-created doctrine holding that the First Amendment
requires the dismissal of many employment discrimination cases against religious
employers, even when the antidiscrimination statutes authorize litigation.
The Fifth Circuit created the ministerial exception in 1972 when it dismissed
Mrs. Billie McClure's equal pay lawsuit against the Salvation Army.5 After that,
federal and state courts repeatedly expanded the exception to reject lawsuits by
elementary and secondary school teachers, school principals, university professors,
music teachers, choir directors, organists, administrators, administrative secretaries,
communications managers, and public relations personnel alleging violations of the
ADA, the Age Discrimination in Employment Act (ADEA), Title VII, the
Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act,
the Family & Medical Leave Act, workers' compensation laws, and numerous state
tort and contract laws.6 In Hosanna-Tabor,the Supreme Court for the first time
1. EEOC v. Hosanna-Tabor Evangelical Lutheran Church & Sch., 597 F.3d 769, 782
(6th Cir. 2010).
2. Id. at 775.
3. 132 S. Ct. 694, 706 (2012).
4. Id.
5. McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972).
6. See, e.g., Skrzypcazk v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238 (10th Cir.
2010) (director of the Department of Religious Formation could not bring an Equal Pay Act
claim); Alcazar v. Corp. of Catholic Archbishop of Seattle, 627 F.3d 1288 (9th Cir. 2010)
(seminarian could not bring state minimum wage claim); McCants v. Alabama-W. Florida
Conf. of United Methodist Church, 372 F. App'x 39 (11th Cir. 2010) (African American
pastor could not bring § 1981 race and retaliation claim); Friedlander v. Port Jewish Ctr., 347
F. App'x 654 (2d Cir. 2009), cert. denied, 130 S. Ct. 1714 (2010) (rabbi's breach of contract
claim dismissed); Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008) (priest could not bring
Title VII racial discrimination claim); Petruska v. Gannon Univ., 462 F.3d 294 (3d Cir.
2006) (college chaplain could not bring Title VII sex discrimination claim); Tomic v.
Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006) (music director could not bring
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SINS OFHOSANNA-TABOR
983
recognized the ministerial exception as a requirement of the religion clauses of the
First Amendment.
This Article criticizes that ruling as a profound misinterpretation of the First
Amendment. The Court mistakenly protected religious institutions' religious
freedom at the expense of their religious employees. Over the forty years since
McClure v. Salvation Army,7 religious employees have been subjected to disability
discrimination, sexual harassment, unequal pay, hostile work environments, age
discrimination, race
discrimination,
gender
discrimination, pregnancy
discrimination, assault, retaliation, national origin discrimination, tortious
interference with contract, blacklisting, intentional and negligent infliction of
emotional distress, breach of contract, and more.8 Instead of having a day in court
to win or lose their cases, they have been barred from litigation by the ministerial
exception, a rule that always grants victory to the employer.
Professor Philip Kurland argued that "[l]imited powers of government were not
instituted to expand the realm of power of religious organizations, but rather in
favor of freedom of action and thought by the people." 9 In the Supreme Court,
however, the people's concerns were abandoned and the power of religious
institutions aggrandized. Chief Justice Roberts blithely wrote that the ministerial
exception "has not given rise to the dire consequences predicted by the EEOC and
Perich" in the forty years since it came into being.' 0 Yet the consequences of the
exception have been dire for every individual employee whose rights were
trampled by a religious employer and who then lost his day in court-and job. The
Court has lost sight of individual religious freedom.
In ruling for Hosanna-Tabor, the Court explicitly rejected the EEOC's argument
that Perich's case should be handled by the freedom of association protected by the
First Amendment. The advantage of relying on association instead of religion is
that "the right to freedom of association is a right enjoyed by religious and secular
groups alike."" The Court strongly rejected the EEOC's position as "untenable"
because the First Amendment "gives special solicitude to the rights of religious
organizations."l 2 What the Court sees as "special solicitude," however, I see as
ADEA claim); Alicea-Hemandez v. Catholic Bishop of Chi., 320 F.3d 698 (7th Cir. 2003)
(Hispanic communications manager could not bring Title VII national origin claim);
Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999) (choirmaster's ADA claim dismissed);
Combs v. Cent. Texas Annual Conf. of United Methodist Church, 173 F.3d 343 (5th Cir.
1999) (former clergy member could not bring pregnancy discrimination claim); Ross v.
Metro. Church of God, 471 F. Supp. 2d 1306 (N.D. Ga. 2007) (director of Worship Arts
(music director) barred from bringing § 1981 claim); Fassl v. Our Lady of Perpetual Help
Roman Catholic Church, No. 05-CV-0404, 2005 WL 2455253 (E.D. Pa. Oct. 5, 2005)
(director of music precluded from bringing FMLA suit); Malichi v. Archdiocese of Miami,
945 So. 2d 526 (Fla. Dist. Ct. App. 2006) (priest could not bring state workers'
compensation claim).
7. McClure, 460 F.2d at 553.
8. For an example of cases, see supra note 6.
9. Philip B. Kurland, Of Church and State and the Supreme Court, 29 U. CHI. L. REv.
1,4(1961).
10. Hosanna-Tabor,132 S. Ct. at 710.
11. Id. at 706.
12. Id.
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lawlessness; the Court held that religious organizations enjoy special freedom to
disobey the law.
When Hosanna-Taborand the earlier ministerial exception cases are reviewed
in detail, it becomes apparent that the numerous justifications for the exception are
all a restatement of one foundational and fundamentally mistaken argument: that
religious groups are entitled to disobey the law.
It is unfortunate that the Court gave its imprimatur to a lawless interpretation of
the religion clauses. In this Article, I identify the numerous flaws in the Court's
reasoning in Hosanna-Taborand argue that the Court was mistaken to recognize a
special preferential rule for religious organizations.
In Part I, for background I provide the details of Cheryl Perich's retaliation
lawsuit against Hosanna-Tabor and explain the reasoning of the Court's ruling
against her. Part II challenges the Court's argument that the history of the First
Amendment requires that ministers not enjoy the protection of the employment
laws. The Court's historical argument about English governments' appointment of
ministers mistakenly ignores the actual context of contemporary ministers and
overlooks a different constitutional history-namely of individual, not institutional,
religious freedom. Part III rebuts the Court's argument that the leading Free
Exercise Clause precedent, Employment Division v. Smith,13 which held specifically
that Native Americans must obey the drug laws and generally that religious citizens
must follow "neutral laws of general applicability," did not require a ruling for
Perich. It is unacceptable that religious individuals must obey the law but religious
institutions need not. Part IV addresses the argument of numerous ministerial
employees, including Perich, that religion was a pretext rather than the real reason
for their firing, and criticizes the Court's astonishing response that firing for
nonreligious as well as religious reasons is protected by the First Amendment.14
Part V examines the vexing question of who qualifies as a minister pre- and postHosanna-Tabor.Although the Court's definition of minister appears to leave open
some situations in which religious employees may sue their employers, lower court
precedents suggest that most employees will continue to lose their day in court. The
Conclusion ends with a defense of a neutral interpretation of the First Amendment
over the Court's favoritism toward religion.
I begin with the facts and reasoning of Hosanna-Tabor.
I. CHERYL PERICH V. HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCHAND
SCHOOL
In 1999, Cheryl Perich became a kindergarten teacher at Hosanna-Tabor
Evangelical Lutheran Church and School, a K-8 school in Redford, Michigan. Four
years later Perich switched to teaching fourth grade students at Hosanna-Tabor. Her
classes included Math, Language Arts, Social Studies, Science, Gym, Art, Music,
Computer, and, occasionally, Religion. During her time there she switched from lay
13. 494 U.S. 872 (1990).
14. See Hosanna-Tabor, 132 S. Ct. at 709 (stating that the purpose of the ministerial
exception is "not to safeguard a church's decision to fire a minister only when it is made for
a religious reason").
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985
teacher status to called teacher status. As the 2004-2005 school year approached,
Perich was preparing to teach third and fourth grade. Suddenly and unexpectedly,
in June 2004 she was hospitalized after becoming ill at a school golf event. Because
her health had not improved by the time the 2004 school year started, HosannaTabor granted her a disability leave of absence. After Perich took the disability
leave, the principal assured her that "'she would still have a job with [us]' when she
regained her health." 5
Fortunately, Perich's doctor was able to diagnose her illness as narcolepsy and
to prescribe appropriate medication to ameliorate her symptoms. By February
2005, the doctor assured Perich that she was "fully functional" and able to perform
her job.16 Perich immediately presented her doctor's certification to school
officials. She was eager to return to her classroom and to follow the proper
requirements to keep her job. Hosanna-Tabor's employment handbook provided
that "failure to return to work on the first day following the expiration of an
approved medical leave may be considered a voluntary termination."1 7 Moreover,
Perich was no longer eligible for disability insurance once she had the release letter
from her doctor. Accordingly, Perich informed the school of her doctor's findings
and prepared to return to work.
School officials, however, questioned her doctor's diagnosis without providing
any medical support for their skepticism about her return to work. They urged
Perich to resign voluntarily from her position. Perich questioned their decision and
mentioned that she would talk to an attorney about a disabilities discrimination
lawsuit. The court found that the Lutheran Church Missouri Synod personnel
manual and the Governing Manual for Lutheran Schools in effect at HosannaTabor "clearly contemplate that teachers are protected by employment
discrimination and contract laws." 8 Nevertheless, school officials fired Perich for
threatening to sue.
Jobless despite her employment contract and her employer's promise to keep a
position open for her after her disability leave, Perich, joined by the EEOC, filed a
disabilities discrimination and retaliation lawsuit against Hosanna-Tabor under the
ADA. Following Sixth Circuit precedent, the district court and the Sixth Circuit
applied a "primary duties" test to determine whether Perich's ADA and retaliation
lawsuit against Hosanna-Tabor would be dismissed under the ministerial
exception. 20 If Perich's primary duties were religious, the case would be dismissed.
If Perich's primary duties were secular, she would have her day in court. The
district court concluded that the ministerial exception applied and dismissed the
lawsuit. The Sixth Circuit reversed, finding that Perich's primary duties were
secular.
15. EEOC v. Hosanna-Tabor Lutheran Church & Sch., 597 F.3d 769, 772-73 (6th Cir.
2010).
16.
17.
18.
19.
Id. at 773.
Id. at 774.
Id. at 782.
Id. at 774-75.
20. See id. at 771, 778; EEOC v. Hosanna-Tabor Evangelical Lutheran Church & Sch.,
582 F. Supp. 2d 881, 887 (E.D. Mich. 2008).
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In the district court, Hosanna-Tabor did not introduce any evidence about
Perich's primary, secular, or religious duties and did not challenge Perich's
description of her duties as an elementary school teacher.21 According to the Sixth
Circuit's opinion, on appeal Hosanna-Tabor "attempted to reframe the underlying
dispute from the question of whether Hosanna-Tabor fired Perich in violation of the
ADA to the question of whether Perich violated church doctrine by not engaging in
internal dispute resolution." 22 In the Supreme Court, Hosanna-Tabor argued that the
"ministerial exception is a categorical rule; if a claim falls within it, the claim must
be dismissed." 23
If Perich were allowed to litigate her case, she would argue that the church
violated the antiretaliation provision of the ADA, which states: "No person shall
discriminate against any individual because such individual has opposed any act or
practice made unlawful by this chapter or because such individual made a charge,
testified, assisted, or participatedin any manner in an investigation, proceeding, or
hearing under this chapter." 24 The ADA language is similar to the antiretaliation
language of other civil rights legislation, including Title VII, 25 in allowing lawsuits
for both opposition and participation, that is, for employees who oppose unlawful
employer conduct or participate in an investigation, complaint, or other legal
proceeding against the employer. Perich's lawsuit was the latter type because she
alleged she was fired in response to filing a complaint with the EEOC and
threatening to sue Hosanna-Tabor.26
In order to establish a prima facie antiretaliation case, Perich must demonstrate
that (1) she engaged in statutorily protected conduct, (2) she suffered a materially
adverse employment action, and (3) there was a "causal connection between the
statutorily protected conduct and the adverse action." 27 Victory in a participation
case like Perich's would be near absolute" 28 because (1) filing with the EEOC is
protected conduct and (2) being fired easily qualifies as a materially adverse
21. See Brief of Cheryl Perich as Appellant at 22, EEOC v. Hosanna-Tabor Evangelical
Lutheran Church & Sch., 597 F.3d 769 (6th Cir. 2010) (Nos. 09-1134, 09-1135) 2009 WL
8384308.
22. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 781
(2012).
23. Brief for the Petitioner at 24, Hosanna-Tabor,132 S. Ct. 694 (No. 10-553).
24. 42 U.S.C. § 12203(a) (2006) (emphasis added).
25. See 42 U.S.C. § 2000e-3(a) (2006) ("It shall be an unlawful employment practice for
an employer to discriminate against any of his employees or applicants for employment, for
an employment agency, or joint labor-management committee controlling apprenticeship or
other training or retraining, including on-the-job training programs, to discriminate against
any individual, or for a labor organization to discriminate against any member thereof or
applicant for membership, because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under this
subchapter.").
26. 42 U.S.C. § 12203(a); Brief of Cheryl Perich as Appellant at 18-19, HosannaTabor, 597 F.3d 769 (Nos. 09-1134, 09-1135).
27. 1 CHARLEs A. SULLIVAN & LAUREN M. WALTER, EMPLOYMENT
LAW AND PRACTICE 362 (4th ed. 2009).
28. Id. at 366.
DISCRIMINATION
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SINS OF HOSANNA-TABOR
987
employment action. 29 Under the third element, moreover, Perich has direct
evidence of Hosanna-Tabor's retaliatory intent: Hosanna-Tabor sent Perich a letter
stating it was firing her because she had threatened to sue. 30
At trial, Hosanna-Tabor would be free to counter Perich's presentation with its
own evidence that it would have fired her even if she had not threatened a lawsuit.
The letter to Perich would make that argument difficult. Those bad facts and
Perich's direct evidence of retaliation may explain why late in the case the school
"attempted to reframe the underlying dispute from the question of whether
Hosanna-Tabor fired Perich in violation of the ADA to the question of whether
Perich violated church doctrine by not engaging in internal dispute resolution." 3 In
other words, school officials may have transformed a legal question into a religious
dispute by challenging Perich's spirituality long after they had retaliated against
her, by arguing that a spiritual person does not sue her employer.
It is noteworthy that Hosanna-Tabor did not offer a nonretaliatory defense to its
firing of Cheryl Perich, but instead argued that it was justified in retaliating against
Perich because she was spiritually unfit. 32 In other words, it argued that the First
Amendment grants it religious freedom to retaliate against employees who assert
their right to sue.
The Supreme Court reversed the Sixth Circuit's ruling that Perich's primary
duties were secular and ruled that she was a minister for purposes of the ministerial
exception. Warning that the question of who qualifies as a minister "is not one
that can be resolved by a stopwatch," 34 the Court concluded that the Sixth Circuit
had ignored Perich's title, and had placed too much emphasis on Perich's secular
duties and the similarities of those duties to the lay teachers' jobs. The Court
emphasized Hosanna-Tabor's recognition of two types of teachers ("called" and
"lay") and observed that Perich became a "called" teacher after she engaged in a
course of theological study in a Lutheran colloquy, thereby becoming a
commissioned minister.35
Refusing to adopt a "rigid formula" for a minister, the Court suggested that
individuals who convey a church's message and carry out its mission are ministers
for First Amendment purposes.36 In Perich's case, "the formal title given Perich by
the Church, the substance reflected in that title, her own use of that title, and the
29. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (Title VII
prohibits employer actions that would likely 'deter victims of discrimination from
complaining to the EEOC').
(6th Cir. 2006).
31. Id. at 781.
32. Petition for Writ of Certiorari at 6, Hosanna-Tabor Evangelical Lutheran Church &
Sch. v. EEOC, 132 S. Ct. 694 (2012) (No. 10-533) (arguing Perich was fired "because her
insubordination and threats of litigation violated Church teaching").
33. Hosanna-Tabor,132 S. Ct. at 708, 710.
34. Id. at 709.
35. Id at 699-700.
36. Id. at 707-08.
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important religious functions she performed for the Church" 37 qualified her for the
exemption. Therefore her antiretaliation lawsuit was dismissed.
In its legal reasoning, the Court insisted that the Free Exercise and
Establishment Clauses require a ministerial exception. The Court based that
conclusion on the history of the First Amendment and a few of the Court's older
church property cases. The substantive arguments are reviewed in the following
Parts. In fact, the Court's argument was not very complex. It seemed to apply a
simple syllogism: (1) churches enjoy absolute freedom to pick their ministers; (2)
Perich was a minister; and therefore (3) the employment laws could not be
enforced. Part II rejects the over-simplified history that undergirds the Court's
opinion.
II. A MISTAKEN READING OF HISTORY AND MINISTERS
The Court's historical argument about the First Amendment begins with the
Magna Carta in 1215 and paints a sorry story of church ministers being forcibly
appointed by the English Crown. Puritans and Quakers apparently fled Europe in
order to "elect their own ministers."38 According to the Court, the Religion Clauses
allowed "no role [for the government] in filling ecclesiastical offices." Secretary of
State James Madison warned "against a political interference with religious
affairs." 39 Throughout the opinion, government appointment of ministers is
identified as the key evil motivating the religion clauses of the First Amendment.
Thus the Court's account of First Amendment history appears to be a "curious
mash-up of religious and political history" that stops in 1791.40
Other available accounts of that history were neglected. For example, after the
sixteenth century, Britain abolished the ecclesiastical courts' jurisdiction over the
clergy's criminal conduct and increasingly subjected clergy to the rule of law.41
The United States never had a system of ecclesiastical courts, but instead ab initio
subjected clergy to court proceedings.42 Thus an alternative lesson of English and
American history is that religious institutions and clergy should be subject to the
secular courts.
On another account of the Constitution, the Framers, who knew and understood
the history of religious power in Europe from the Inquisition to the Wars of
Religion, developed a Constitution acknowledging "that every individual and every
institution holding power was likely to abuse that power and therefore must be
checked." 4 3 Like all other powerful institutions, religions had to be subject to the
rule of law. The religion clauses did just that. The same James Madison quoted on
behalf of the ministerial exception in Hosanna-Taborfeared the power of both state
37. Id. at 708.
38. Id. at 702.
39. Id. at 703.
40. Winnifred Fallers Sullivan, The Church, THE IMMANENT
4:25 PM), http://blogs.ssrc.org/tif/2012/01/31/the-church/.
FRAME
(Jan. 31, 2012,
41. Marci A. Hamilton, Religious Institutions, the No-Harm Doctrine, and the Public
Good, 2004 BYU L. REv. 1099, 1128-29.
42. Id. at 1132.
43. Id. at 1133.
2013]
989
and church and warned against "the potential abuse of ecclesiastical corporate
power."44 Even Protestant clergy of the revolutionary era supported the First
Amendment because they understood that "[p]ower, civil and ecclesiastical,has to
be deflated, diffused, and properly related in order to keep it from becoming
absolute, arbitrary, and abused.'"4 Thus an alternative lesson in American history is
that the power of religious institutions needs to be limited as much as any other
institution's power.
Another interpretation of the First Amendment holds that the Bill of Rights
protects individual freedom against the power of institutions. As the late
constitutional scholar Philip Kurland concluded, "[1]imited powers of government
were not instituted to expand the realm of power of religious organizations, but
rather in favor of freedom of action and thought by the people.'" Interpreting the
Free Exercise Clause to protect religious institutions' rights against their members
ignores the experience of the earliest Americans, who broke away from traditional
religious organizations and pursued individual liberty.47 "The American Revolution
broke many of the intimate ties that had traditionally linked religion and
government . . . and turned religion into a voluntary affair, a matter of individual
free choice.' Americans of that era "believed that the individual, not the state or
the church, should decide matters of faith." Thus, yet another alternative lesson of
English and American history is that courts should not select a legal rule that
automatically favors powerful institutions over individuals as the ministerial
exception does.
According to the National Employment Lawyers Association, who filed a brief
in the Supreme Court on behalf of Cheryl Perich, an early American tradition of
allowing lawsuits by former and current ministers against their employers coexisted
alongside the history of opposition to government appointment of ministers.50
Some ministers successfully sued to recover their positions.5 1 Courts regularly
enforced employment contracts involving clergy: 52
Courts gave several reasons for enforcing contract claims by
ministers. They explained, first, that ministers had the same right as
anyone else to judicial enforcement of their legal rights. . . . A
44. FORREST CHURCH, So HELP ME GOD: THE FOUNDING FATHERS AND THE FIRST GREAT
BATTLE OVER CHURCH AND STATE 355 (2007).
45. James H. Smylie, Protestant Clergy, the First Amendment and Beginnings of a
Constitutional Debate, 1781-91, in THE RELIGION OF THE REPUBLIC 116, 153 (Elwyn A.
Smith ed., 1971) (emphasis added).
46. Kurland, supra note 9, at 4.
47. GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 17891815, at 609-13 (2009).
48. Id. at 576.
49. FRANK LAMBERT, THE FOUNDING FATHERS AND THE PLACE OF RELIGION IN AMERICA
180 (2003) (emphasis added).
50. Brief Amicus Curiae of the National Employment Lawyers Association in Support
of Respondents at 3-4, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132
S. Ct. 694 (2012) (No. 10-553).
51. Id. at 4-7.
52. Runkel v. Winemiller, 4 H. & McH. 429 (Md. 1799).
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substantial portion of these [cases in which religious organizations
sought redress from secular courts] involved a disputed dismissal, the
religious organization seeking a court order to enjoin a previously
appointed minister from continuing to hold services or engage in other
functions. These lawsuits necessarily turned at least in part on the
legality of the defendant's termination, and a decision in favor of the
minister-defendant overturned the purported dismissal and confirmed
his right to remain in the pulpit.53
Thus an alternative lesson of American history is that ministers have not
traditionally fallen outside the protection of civil law in the manner that HosannaTabor suggests.
The Court's reasoning in Hosanna-Tabordemonstrates the dangers of historical
analogy and originalism in resolving contemporary problems. As argued above,
alternative histories that protect clergy rights were equally available for the Court's
selection. Moreover, the idea that government appointment of ministers in Europe
should resolve the case of a disabled elementary schoolteacher in Michigan lacks
common, moral, and legal sense. Many of the ministerial exception cases have
involved women clergy in Christian denominations for whom women's ordination
was not even imaginable at the time of the nation's founding. The founding
Constitution lacked the Fourteenth Amendment's commitment to racial, gender,
and political equality. Today's American employees, religious and nonreligious
alike, came of age enjoying the protection of the civil rights legislation of the
1960s, which prohibits discrimination on the basis of race, national origin, gender,
and religion, thus banning sexual harassment, hostile work environment, and
pregnancy discrimination from the workplace. The disability rights movement
began in the 1970s and culminated in bipartisan passage of the ADA in 1990. In
passing these antidiscrimination statutes, moreover, Congress repeatedly refused to
exempt religious organizations from lawsuits for discrimination on the basis of
race, national origin, gender, pregnancy, and disabilities.
Thus, despite the fact that multiple plausible historical interpretations of the
First Amendment's religion clauses exist, the Court chose a truncated history of the
Magna Carta that automatically dismisses antidiscrimination lawsuits. This is
unacceptable. Using English history to overcome civil rights legislation approved
by Congress defies the rule of law.
Instead, the lesson of the modern history of sexual harassment, antiretaliation,
disability, and minimum wage cases is that male and female seminarians and clergy
may require legal protection from their church supervisors and colleagues. A
Mexican seminarian who moved to Washington state and stereotypically performed
maintenance work as part of his duties was denied the protection of sexual
harassment, antiretaliation, and state minimum wage laws simply because he was a
seminarian. 54 Older pastors have been fired because of their age;" black and
53. Brief Amicus Curiae of the National Employment Lawyers Association in Support
of Respondents, supra note 50, at 7, 9-10 (emphasis added) (citations omitted).
54. See Alcazar v. Corp. of the Catholic Archbishop of Seattle, 627 F.3d 1288, 1292-93
(9th Cir. 2010).
55. See, e.g., Minker v. Balt. Annual Conference of United Methodist Church, 894 F.2d
2013]1
991
Hispanic ministers because of their race and national origin.5 Women clergy have
been denied the protection of equal pay and pregnancy discrimination laws. The
only reason given is that the ministerial relationship enjoys a different legal
status. 5
Reverend Pamela Combs, for example, was first ordained a Baptist minister and
later became a Methodist minister working for the United Methodist Church. Soon
after telling church officials she was pregnant, Combs asked why her salary was
lower than comparable male ministers' salaries and asked for a different housing
allowance.59 After Combs gave birth, she "suffered serious post-partum
complications, which required hospitalization, surgery, heavy medication, and
extensive rest."60 Only then did her male pastor question her "competence,
performance, and honesty."6 ' Despite the fact that the Methodist bishop had
reappointed Combs to a ministerial role, her pastoral supervisor determined she
was a lay employee and asked her to repay her maternity benefits. 62 Reverend
Combs's pregnancy discrimination case was then dismissed under the ministerial
exception, even though the United Methodist Church had returned her to lay status
in order to end her insurance coverage.
Mary Rosati was a novice with the Roman Catholic Contemplative Order of the
Sisters of the Visitation of Toledo, Ohio. After fifteen months with the order,
during which she had advanced from postulant stage to novice, Rosati developed
kidney problems and breast cancer and underwent neurosurgery for a herniated
disc.63 After Rosati's doctor explained to the Mother Superior that Rosati would
need a lumpectomy or mastectomy as well as further breast cancer treatment,
Mother Superior said, "We will have to let her go. I don't think we can take care of
her."64 The doctor was concerned about the Mother Superior's remarks because he
understood that Rosati would lose her health insurance if she left the order.65 Later,
another sister told Rosati, "Maybe God is trying to tell you something. Perhaps you
1354 (D.C. Cir. 1990).
56. See, e.g., Alicea-Hernandez v. Catholic Bishop of Chi., 320 F.3d 698 (7th Cir.
2003); Young v. N. Illinois Conference of United Methodist Church, 21 F.3d 184 (7th Cir.
1994).
57. See, e.g., Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238 (10th Cir.
2010); Combs v. Central Texas Annual Conf. of United Methodist Church, 173 F.3d 343
(5th Cir. 1999); McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972).
58. See supra notes 53-57 and accompanying text.
59. See Combs, 173 F.3d at 343.
60. Id at 344.
61. Id.
62. Id In a pregnancy discrimination case, a plaintiff must initially show: (1) that she
was pregnant; (2) that she was qualified for her job; (3) that she was subjected to an adverse
employment decision; and (4) that there is a nexus between her pregnancy and the adverse
employment decision. McDonald v. Union Camp Corp., 898 F.2d 1155, 1160 (6th Cir. 1990).
63. See Rosati v. Toledo, Ohio Catholic Diocese, 233 F. Supp. 2d 917 (N.D. Ohio
2002).
64. Id. at 918.
65. See id.
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don't have a vocation."6 Rosati's case was also dismissed under the ministerial
exception.67
The assumption in the Court's historical argument about government
appointment of ministers is that ministers should not enjoy the protection of the
civil rights laws. Taking ministers outside the protection of the courts supposedly
protects religious freedom. The ministerial exception instead stands for the
proposition that religious institutions are not required to obey the law, even at the
expense of the civil rights of their religious employees. This holding appears
irreconcilable with the Court's earlier rulings about the Free Exercise Clause,
which I discuss in the next Part. Part III explains that the Court misinterpreted its
own leading Free Exercise precedent in order to issue a ruling for Hosanna-Tabor.
Ill. RECONCILING EMPLOYMENTDiVIsIoN V. SMTH
The leading free exercise case is the Court's 1990 decision in Employment
Division v. Smith. In Smith, the Court held that two Native American drug
counselors who used peyote in a religious ritual could be denied unemployment
compensation benefits because the criminal laws prohibit drug use. The famous
language from Smith is that all citizens are subject to "neutral laws of general
applicability" 69 because to permit exceptions from the criminal law "would be to
make the professed doctrines of religious belief superior to the law of the land, and
70
in effect to permit every citizen to become a law unto himself." Thus under Smith
every religious citizen must follow the law if it is a neutral law of general
applicability.
Opponents of the ministerial exception, including this author, have argued that if
religious individuals must obey neutral laws of general applicability, so too must
religious institutions. Just as Alfred Smith had to obey neutral drug laws of general
applicability, they have insisted, so too should Hosanna-Tabor Evangelical
Lutheran Church and School and other religious employers obey the
antidiscrimination laws. 7 Nonetheless, all the federal courts of appeals ruled that
the ministerial exception is consistent with Smith.72 The Supreme Court confirmed
the courts' position in a short paragraph that distinguished Smith from the
ministerial exception:
It is true that the ADA's prohibition on retaliation, like Oregon's
prohibition on peyote use, is a valid and neutral law of general
66. Id.
67. Id. at 922-23.
68. 494 U.S. 872 (1990).
69. Id. at 901.
70. Id. at 879 (quoting Reynolds v. United States, 98 U.S. 145, 166-67 (1878)).
71. See Brief of Amici Curiae Law & Religion Professors in Support of Respondents at
17-20, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012)
(No. 10-553)
72. See Bryce v. Episcopal Church Diocese of Colo., 289 F.3d 648, 656 (10th Cir.
2002); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 705
n.2 (2012) (identifying circuit holdings on Smith and the exception).
2013]
993
applicability. But a church's selection of its ministers is unlike an
individual's ingestion of peyote. Smith involved government regulation
of only outward physical acts. The present case, in contrast, concerns
government interference with an internal church decision that affects
the faith and mission of the church itself. The contention that Smith
forecloses recognition of a ministerial exception rooted in the Religion
Clauses has no merit.
This is a strange argument in the context of the ministerial exception. In terms of
religious freedom, the ingestion of peyote is a profound religious ritual with a long
American history predating the Constitution. 4 In sharp contrast, the ministerial
exception involves cases where employees allege disabilities discrimination,
retaliation, pregnancy discrimination, sexual harassment, hostile work environment,
unequal pay, race discrimination, gender discrimination, and other civil rights
violations. Women clergy, for example, sue for pregnancy discrimination, sexual
harassment, hostile work environment, and unequal pay. Other ministers sue for
disabilities discrimination. Many of these "ministers" have been schoolteachers or
nonordained personnel who did not realize they were "ministers" until their
lawsuits were dismissed.
The Court asserts that it rightly distinguishes between the "outward physical
acts" of Smith and the "internal church decision that affects the faith and mission of
79
the church itself' in Hosanna-Tabor.
That distinction cannot hold water. What
could "affect[] the faith and mission of the church itself' more than punishing
individuals like Smith for participation in a religious ritual? And what "internal
church decision that affects the faith and mission of the church itself' is involved in
the firing of a disabled employee in a church that does not preach disabilities
discrimination?80
The distinction between "outward physical acts" and the "internal church
decision that affects the faith and mission of the church itself' collapses when the
73. Hosanna-Tabor, 132 S. Ct. at 707 (citing Employment Div., Dept. of Human
Resources of Or. v. Smith, 494 U.S. 872 (1990) (distinguishing the government's regulation
of "physical acts" from its "lend[ing] its power to one or the other side in controversies over
religious authority or dogma") (parenthetical in original)).
74. CAROLYN N. LONG, RELIGIOUS FREEDOM AND INDIAN RIGHTS: THE CASE OF OREGON
V.SMITH6-8 (2000).
75. For a list of pertinent cases, see supra note 6.
76. See Skrzypcazk, 611 F.3d 1238; Petruska, 462 F.3d 294; Combs, 173 F.3d 343;
McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972).
77. See, e.g., Werft v. Desert Sw. Annual Conference of the United Methodist Church,
377 F.3d 1099 (9th Cir. 2004).
78. See Pardue v. Ctr. City of Consortium Sch., 875 A.2d 669 (D.C. Cir. 2005); AliceaHernandez, 320 F.3d 698; Clapper v. Chesapeake Conference of Seventh Day Adventists,
No. 97-2648, 1998 WL 904528 (4th Cir. Dec. 29, 1998); Archdiocese of Miami, Inc. v.
Mifiagorri, 954 So. 2d 640 (Fla. Dist. Ct. App. 2007); Coulee Catholic Sch. v. Labor &
Indus. Review Comm'n, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868.
(2012).
80. Id.
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Court clarifies that Smith bars religious acts by individuals while Hosanna-Tabor
governs cases that do not even involve a religious dispute between the parties. It
seems odd that an individual's religious ritual would not enjoy First Amendment
protection while a nonreligious dispute among church members would.
Nonetheless, in one of the most astonishing parts of the opinion, the Court held:
The purpose of the exception is not to safeguard a church's decision to
fire a minister only when it is made for a religious reason. The
exception instead ensures that the authority to select and control who
will minister to the faithful-a matter "strictly ecclesiastical"-is the
church's alone.8 1
Thus, the Court did not protect religious freedom by refusing to take sides in a
religious dispute, as it had done in its past church property cases.82 Instead, it ruled
that religious employers enjoy absolute First Amendment protection to dismiss
their "ministers" even when no religious issue is involved. In other words, religious
freedom trumps the antidiscrimination laws even when no religious dispute is at
stake. According to the Supreme Court, religious freedom entitles institutions to
disobey the law.
To understand the confused rationale behind the Court's ruling on the
nonreligious or religious nature of the employment dispute, it is important to
understand the ministerial exception case law that developed in the courts before
Hosanna-Tabor.Although the Court referred to that body of case law," it did not
spend sufficient time in assessing the nuances of the prior litigation. The following
Part of this Article provides more evidence that the Court's dismissal of
nonreligious disputes on First Amendment grounds is based on its unseemly belief
that religious organizations are free to disobey the law. Part IV explains that the
ministerial exception is unnecessary because antidiscrimination law is capable of
handling the problems that usually justify the ministerial exception.
IV. FIRING EMPLOYEES FOR NONRELIGIOUS AND PRETEXTUAL REASONS
In order to analyze the Court's ruling in Perich's case, it is important to
understand the general structure of an employment discrimination lawsuit. Recall
from Part I that in order to establish a prima facie antiretaliation case, Perich had to
demonstrate that (1) she engaged in statutorily protected conduct, (2) she suffered a
materially adverse employment action, and (3) there was a causal connection
between the statutorily protected conduct and the adverse action.
The elements of the prima facie case do not intrude upon the First Amendment.
Allowing lawsuits against religious organizations does not guarantee success for
employees. A minister who complains that a coworker is "making her miserable"
without clarifying that she is complaining about sexual harassment has not engaged
81. Id. at 709 (emphasis added) (citation omitted).
82. See, e.g., Presbyterian Church v. Mary Elizabeth Blue Hull Mem'1 Presbyterian
Church, 393 U.S. 440 (1969).
84. SULLIVAN & WALTER, supra note 27.
2013]
995
in statutorily protected activity. A pastoral student who merely asserts, "I worry
about retaliation for filing the EEOC complaint" has not stated a clear claim of
retaliation.86 Reverend Gellington (who was asked to move 800 miles at reduced
pay),87 Chaplain Schmoll (who lost fifty percent of her work hours), 88 Chaplain
Petruska (whose office was reorganized before she resigned under pressure),89 and
Reverend Himaka (whose office lost its funding)90 would have to prove that the
employment action taken against them was materially adverse.9 1All plaintiffs have
to prove a causal link between the statutorily protected conduct and the adverse
employment action.92 Unlike Perich, many plaintiffs do not have direct evidence of
a letter stating that threatening a lawsuit cost them their jobs and will have to rely
upon circumstantial evidence to make their claim.
Once the plaintiff establishes her prima facie case, the burden of production
shifts to the defendant.93 Although the exact nature of that burden is described
differently under various antidiscrimination statutes, the burden shift allows the
defendant to rebut the plaintiffs prima facie case. In a retaliation case, for example,
the defendant could "put into evidence a nonretaliatory reason for its action" or
evidence that it would have made the same decision anyway.94 The nonretaliatory
reason may be religious or nonreligious. Once the defendant identifies this
nonretaliatory reason for action, the burden shifts back to the plaintiff to establish
that the defendant's reason is a pretext for action. Under the classic McDonnell
85. Rojas v. Roman Catholic Diocese of Rochester, 793 F. Supp. 2d 381, 397, 408
(W.D.N.Y. 2010); see also Curay-Cramer v. Ursuline Acad., 450 F.3d 130, 134 (3d Cir.
2006) (endorsing an ad is not protected activity).
86. McNeil v. Mo. Annual Conference of The United Methodist Church, No. 2-1 0-CV04154-NKL, 2010 WL 3732191, at *6 (W.D. Mo. Sept. 20, 2010), aff'd, 412 F. App'x 912
(8th Cir. 2011).
87. Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1301
(11th Cir. 2000).
88. Schmoll v. Chapman Univ., 83 Cal. Rptr. 2d 426 (Cal. Ct. App. 1999).
89. Petruska v. Gannon Univ., 462 F.3d 294, 301 (3d Cir. 2006).
90. Himaka v. Buddhist Churches of Am., 917 F. Supp. 698, 703 (N.D. Cal. 1995).
91. See Ticali v. Roman Catholic Diocese of Brooklyn, No. 99-7474, 1999 WL 1212555
(2d Cir. Dec. 13, 1999) (request to change to pre-kindergarten class was not materially
adverse).
92. SULLIVAN & WALTER, supra note 27.
93. HAROLD S. LEWIS, JR. & ELIZABETH J. NORMAN, EMPLOYMENT DISCRIMINATION LAW
AND PRACTICE § 2.40, at 146 (2d ed. 2004) ("Once the employee satisfies her prima facie
burden, the resulting presumption of retaliation must be rebutted by the employer by
producing evidence of a legitimate nondiscriminatory reason for the adverse employment
action."); PAUL M. SECUNDA & JEFFREY M. HIRSCH, MASTERING EMPLOYMENT
DISCRIMINATION LAW 123 (2010) ("If the plaintiff makes out a prima facie case, the burden
of production (not persuasion) shifts to the defendant to articulate a legitimate, nonretaliatory reason for its employment actions."); see also Jones v. Walgreen Co., 679 F.3d 9,
20 (1st Cir. 2012) ("If she does make out a prima facie case, 'the burden shifts to the
employer "to articulate a legitimate, nondiscriminatory [or nonretaliatory] reason for its
employment decision.'"" (alteration in original) (quoting Wright v. Compusa, Inc., 352 F.3d
472, 478 (1st Cir. 2003)).
94. SULLIVAN & WALTER, supra note 27, at 383.
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Douglas rule that governed many ministerial exception cases, once the defendant
offers its nondiscriminatory rationale for action, the plaintiff must "be afforded a
fair opportunity to show that [defendant's] stated reason for [plaintiffs] rejection
was in fact pretext."95
Part A explains what happens in an employment lawsuit when employers offer
either religious or nonreligious reasons to justify their employment action. Part B
challenges the Court's conclusion in Hosanna-Taborthat the pretextual analysis is
always prohibited under the First Amendment.
A. Religious and NonreligiousReasonsfor Employment Actions
Perhaps surprisingly, there are not many ministerial exception cases that take the
form of Perich's, where the defendant asserts that it has a religious reason to violate
the law; namely that retaliation (as prohibited by law) is proper because Christian
employees are not allowed to sue. Church defendants rarely state that they have a
religious belief in racial or national-origin discrimination, gender discrimination,
disabilities discrimination, or sexual harassment when those types of lawsuits are
brought against them. The majority of gender discrimination cases, for example,
are filed by either women clergy or women in nonclerical positions.96 Rockwell v.
Roman CatholicArchdiocese of Boston is the rare case in which a woman sued the
Roman Catholic Church seeking ordination to their all-male priesthood. The
women's ordination case is usually viewed as offering the strongest argument on
behalf of the ministerial exception as no one will argue that the state should be able
to force the church to ordain women. Unfortunately, the Catholic women's
ordination case drew considerable attention at the Hosanna-Tabororal argument,
and in the opinion when the Court stated that it, the EEOC, and Perich all agreed
"that it would violate the First Amendment for courts to apply such laws to compel
the ordination of women by the Catholic Church or by an Orthodox Jewish
seminary."98
The ordination example suggests that an employer's religious reason (we do not
ordain women) should always defeat an employee's lawsuit. That has not been the
case. Several Baptist churches held a religious, scripture-based belief that men are
the heads of households and therefore entitled to higher pay than women.99 A
Seventh-day Adventist church argued that it was entitled to demote and then fire an
employee who filed an equal pay complaint because church doctrine prohibited
95. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973).
96. See Brief of Amici Curiae Law & Religion Professors in Support of Respondents at
11 n.15, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694
(2012) (No. 10-553).
97. Rockwell v. Roman Catholic Archdiocese of Boston, Mass., No. 02-239-M, 2002
WL 31432673, at *1(D.N.H. Oct. 30, 2002).
98. Hosanna-Tabor Evangelical Church & Sch. v. EEOC, 132 S. Ct. 694, 706 (2012).
99. Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990); EEOC v.
Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986); EEOC v. Tree of Life Christian
Schs., 751 F. Supp. 700 (S.D. Ohio 1990); see also Russell v. Belmont Coll., 554 F. Supp.
667 (M.D. Tenn. 1982).
2013]
997
lawsuits by its members.' 00 The Shiloh True Light Church of Christ challenged the
minimum age requirements of the child labor laws, arguing that their religion
required them to give their children vocational training.'0 1 A Quaker charitable
organization thought that its religious tradition of hospitality to the stranger should
allow it to ignore the alien worker requirements of the immigration laws.1 02
In all those cases courts rejected the religious defense and held the employers to
the application of the employment laws. 03 They based their decisions upon some
variant of a balancing test. The cases decided in the pre-Employment Division v.
Smith era applied strict scrutiny and balanced the burden upon religion against the
government's compelling interest. In the pre-Smith era, the burden on religion was
viewed as insubstantial in the equal pay cases, and the government's interest was
seen as compelling in the child labor and immigration contexts.1
The application of the ministerial exception in those cases involved the courts in
deciding when and which religions either must obey or may disobey the laws. The
result was unequal among religions. Presumably, the Baptists were as committed to
their head-of-household rule as Catholics are to their all-male priesthood.
Moreover, the government's interest in both cases-women's equality-was the
same.
The language of Hosanna-Taborsuggests that the Court has permanently struck
the balance in favor of institutional religious freedom instead of the
antidiscrimination laws. As the Court explained in Hosanna-Tabor:
The interest of society in the enforcement of employment
discrimination statutes is undoubtedly important. But so too is the
interest of religious groups in choosing who will preach their beliefs,
teach their faith, and carry out their mission. When a minister who has
been fired sues her church alleging that her termination was
discriminatory, the FirstAmendment has struck the balancefor us. The
church must be free to choose those who will guide it on its way. os
Surely this preference for religion over antidiscrimination cannot and will not be
absolute. As Methodist Minister Ralph Minker warned years ago, "taken to its
logical conclusion [the ministerial exception] view would create a first amendment
prohibition against even the most egregious human rights violations... . [F]or
example,... under our formulation courts would be prevented from enforcing
homicide statutes06against churches that selected their pastors by making them play
russian roulette."
100.
101.
102.
103.
EEOC v. Pac. Press Publ'g Ass'n, 676 F.2d 1272 (9th Cir. 1982).
Brock v. Wendell's Woodwork, Inc., 867 F.2d 196 (4th Cir. 1989).
Am. Friends Serv. Comm. Corp. v. Thornburgh, 961 F.2d 1405 (9th Cir. 1991).
See, e.g., Thornburgh, 961 F.2d 1405; Dole, 899 F.2d 1389; Brock, 867 F.2d 196;
Fremont Christian Sch., 781 F.2d 1362; Pac. Press Publ'g Ass'n, 676 F.2d 1272; Tree of
Life ChristianSchs., 751 F. Supp. 700; Russell, 554 F. Supp. 667.
104. For a list of cases, see supra note 103.
105. Hosanna-Tabor Evangelical Church & Sch. v. EEOC, 132 S. Ct. 694, 710 (2012).
(emphasis added).
106. Minker v. Balt. Annual Conference of United Methodist Church, 894 F.2d 1354,
1357 (D.C. Cir. 1990).
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I am confident the courts will prohibit religious employers from hiring and
firing their ministers through Russian roulette. But by what reasoning? The courts
will have to make a determination that some religious beliefs are worse than others,
thereby undermining the neutrality among religions that the First Amendment
should protect.
As noted above, the more astonishing part of Hosanna-Tabor is its blithe
assertion that religious employers win even when there is no religious dispute at
stake: "The purpose of the exception is not to safeguard a church's decision to fire
a minister only when it is made for a religious reason."0 7 Instead of ruling that
religious employers are justified in disobeying the law whenever they have a
doctrinal reason to do so, the Court opened the possibility that purely secular
lawsuits against religious employers will also be dismissed.
In making this assertion, the Court appears to undermine court decisions that
have permitted ministerial lawsuits for sexual harassment and hostile work
environment. Both John Bollard and Christopher McKelvey alleged that as Roman
Catholic seminarians they were sexually harassed by superiors who propositioned
them, invited them to gay bars, showed them pornography, or engaged in other
harassing conduct.108 Both men left the seminary because of the harassment. The
Ninth Circuit and the Supreme Court of New Jersey refused to apply the ministerial
exception to those cases based in large part on the impossibility of interference in
the churches' choice of ministers because the seminarians did not want to return to
the priesthood. 109
It was also relevant to, but not determinative of, the outcome of those two cases
that neither church defendant espoused a religious belief in sexual harassment. That
is true of all the sexual harassment cases; no church defends sexual harassment as a
doctrinal matter. On that basis, several courts allowed sexual harassment lawsuits
to proceed on the grounds that "[hostile work environment] ha[d] [any]thing to do
with the .
.
. doctrine of the [Roman] Catholic Church," 10 sexual harassment is
"unrelated to pastoral qualifications,""' or the "reasons for termination are not
religious-based."" 2 In the Second Circuit, but not elsewhere," a "plaintiff alleging
107. Hosanna-Tabor,132 S. Ct. at 709 (emphasis added).
108. Bollard v. Cal. Province of the Soc'y of Jesus, 196 F.3d 940, 944 (9th Cir. 1999);
McKelvey v. Pierce, 800 A.2d 840, 845-46 (N.J. 2002).
109. Bollard, 196 F.3d at 947; McKelvey, 800 A.2d at 858-59.
110. Rojas v. Roman Catholic Diocese of Rochester, 557 F. Supp. 2d 387, 399
(W.D.N.Y. 2008).
111. Prince of Peace Lutheran Church v. Linklater, 28 A.3d 1171, 1185-86 (Md. 2011)
(finding no doctrinal reason for policy and church had policy against it); Black v. Snyder,
471 N.W.2d 715, 721 (Minn. Ct. App. 1991) ("Black's sexual harassment claim is unrelated
to pastoral qualifications or issues of church doctrine.").
112. See Nigrelli v. Catholic Bishop of Chi., No. 84-C-5564, 1991 WL 36712, *4 (N.D.
Ill. Mar. 15, 1991); see also Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 953-54 (9th
Cir. 2004) (allowing some but not complete lawsuit for sexual harassment); Dolquist v.
Heartland Presbytery, 342 F. Supp. 2d 996 (D. Kan. 2004) (declining to apply ministerial
exception to sexual harassment claim where plaintiff resigned as a result of harassment).
113. See Rweyemamu v. Cote, 520 F.3d 198, 208 (2d Cir. 2008). But see, e.g., AliceaHernandez v. Catholic Bishop of Chi., 320 F.3d 698, 703 (7th Cir. 2003) ("The 'ministerial
exception' applies without regard to the type of claims being brought."); Skrzypczak v.
2013]
999
particular wrongs by the church that are wholly non-religiousin characteris surely
not forbidden his day in court."ll 4 District courts applied that rule to allow hostile
work environment cases.' 15
The Supreme Court now suggests those purely secular law disputes are covered
by the ministerial exception, giving religious employers the right to free themselves
from secular disputes even when secular employers may not.
In other words, religious freedom means allowing religious institutions to
violate the law even when nothing religious is at stake. Such a conclusion is at odds
with any rational interpretation of the First Amendment.
B. Religious Pretext
The Sixth Circuit expressed doubt as to whether Hosanna-Tabor fired Perich for
religious or nonreligious reasons. The school "attempted to reframe the underlying
dispute from the question of whether Hosanna-Tabor fired Perich in violation of the
ADA to the question of whether Perich violated church doctrine by not engaging in
internal dispute resolution.""' 6 In employment law terms, Perich argued that the
religious reason for her firing was pretextual and should not be believed by the trial
court.
Justice Alito's questions at oral argument and concurrence expressed strong
doubts about letting juries review evidence that a church firing was pretextual. The
pretextual analysis, he argued, always intrudes upon religious doctrine:
The credibility of Hosanna-Tabor's asserted reason for terminating
respondent's employment could not be assessed without taking into
account both the importance that the Lutheran Church attaches to the
doctrine of internal dispute resolution and the degree to which that tenet
compromised respondent's religious function. If it could be shown that
this belief is an obscure and minor part of Lutheran doctrine, it would
be much more plausible for respondent to argue that this doctrine was
not the real reason for her firing. If, on the other hand, the doctrine is a
central and universally known tenet of Lutheranism, then the church's
asserted reason for her discharge would seem much more likely to be
nonpretextual. But whatever the truth of the matter might be, the mere
adjudication of such questions would pose grave problems for religious
autonomy: It would require calling witnesses to testify about the
importance and priority of the religious doctrine in question, with a
civil factfinder sitting in ultimate judgment of what the accused church
really believes, and how important that belief is to the church's overall
mission.117
Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1245 (10th Cir. 2010) (accord).
114. Rweyemamu, 520 F.3d at 208 (emphasis added).
115. E.g., Rojas, 557 F. Supp. 2d at 397-98.
(6th Cir. 2010).
(2012) (Alito, J., concurring).
1000
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According to the court decisions that agree with Justice Alito and favor the
ministerial exception, constitutional trouble begins somewhere around the time that
the defendant identifies its nonretaliatory reason or the plaintiff tries to prove
pretext. The courts have repeatedly expressed First Amendment concerns about the
entanglement with or intrusion upon religious doctrine that occurs if they dare
attempt to decipher the churches' motives in their employment decisions. They fear
that allowing employment discrimination lawsuits to proceed will involve them in
religious questions over which the First Amendment denies them authority.
Those arguments reflect a misinterpretation of both employment and First
Amendment law. As Judge Richard Posner has explained:
[T]he question in a discrimination case is not whether the employer's
stated nondiscriminatory ground for the action of which the plaintiff is
complaining is correct but whether it is the true ground of the
employer's action rather than being a pretext for a decision based on
some other, undisclosed ground. If it is the true ground and not a
pretext, the case is over.'
In other words, "the question is not whether the asserted reason is true but whether
the defendant believed it to be true when it took the challenged action." 19
A similar distinction between what is true and what the defendant believed to be
true is also a crucial component of First Amendment analysis. Under a long line of
Supreme Court cases beginning with United States v. Ballard,120 courts and juries
are free to decide whether an individual's religious beliefs are sincerely held but
not whether they are true. 121 Soldiers are routinely subjected to court analysis of
whether their religious beliefs are sincerely held before they receive conscientious
objector status.122 Unemployment compensation benefits may be withheld or
granted based on whether an applicant's religion is sincerely held. 123 Prisoners'
religious beliefs are regularly subjected to sincerity review when they request
accommodation for their religious practices. 124 Plaintiffs must hold a sincere
religious belief in order to win a religious discrimination lawsuit under Title VII.125
118. Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417 (7th Cir. 2006) (emphasis
added) (citation omitted).
119. SULLIVAN & WALTER, supra note 27, at 126 (emphasis added).
120. 322 U.S. 78 (1944).
121. See supra note 120 and accompanying text; infra notes 122-27 and accompanying
text.
122. See, e.g., United States v. Seeger, 380 U.S. 163, 185 (1965).
123. See Frazee v. Ill. Dep't of Emp't Sec., 489 U.S. 829, 834 (1989); Thomas v. Review
Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707, 716 (1981); Hansard v. Johns-Manville Prods.
Corp., No. 1902, 1973 WL 129, at *2 (E.D. Tex. Feb. 16, 1973) (dismissing plaintiffs
employment discrimination claim not to work Sundays on sincerity grounds because he had
previously worked regularly on Sundays).
124. See, e.g., O'Lone v. Estate of Shabazz, 482 U.S. 342, 345 (1987).
125. See, e.g., Webb v. City of Phila., 562 F.3d 256, 259 (3d Cir. 2009) ("To establish a
prima facie case of religious discrimination, the employee must show: (1) she holds a sincere
religious belief that conflicts with a job requirement; (2) she informed her employer of the
conflict; and (3) she was disciplined for failing to comply with the conflicting requirement."
2013]
1001
Legislators are usually subjected to a court determination of whether they acted
with a secular purpose; the Establishment Clause invalidates their legislation if they
acted with a religious purpose or a sham secular purpose.126 Finally, in the
employment discrimination context, the Supreme Court has stated that the EEOC
does not violate the First Amendment rights of a religious employer when it tries to
"ascertain whether the ascribed religious-based reason was in fact the reason for the
discharge."l 27
Thus courts are wrong to hold, for example, that Holley Van Osdol's lawsuit
alleging demotion for reporting sexual abuse "inevitably leads the court into
analysis of UCRS' choice of a minister, even for purposes of a pretextual inquiry.
The decision to hire or discharge a minister is itself inextricable from religious
doctrine."' 28 Judge Posner himself has defended a strong ministerial exception on
similar grounds, arguing that in a pretext setting the "court would be asked to
resolve a theological dispute."l 29 That point ignores not only the courts' regular
examination of religious motivation but also their authorized use of "neutral
principles of law" to resolve church property disputes. According to Jones v. Wolj;
a court may review church deeds, charters, constitutional provisions, and other
documents as long as it interprets them in purely secular terms. 3 0
The same rule should apply in the employment setting. Under McDonnell
Douglas, a plaintiff "must be given a full and fair opportunity to demonstrate by
competent evidence that the presumptively valid reasons for his rejection were in
fact a coverup for a . . . discriminatory decision."' 3 ' As in nonreligious cases, a
"variety of evidence may help determine" pretext, including prefiring statements
showing bias, violation of standard operating procedures, comparative treatment of
other employees, data suggesting a general pattern of discrimination, and "nondiscriminatory justification stated only after the allegation of discrimination is
made."' 32
Like Cheryl Perich, Todd David Barton complained that the religious reason for
his firing was offered late in the litigation and was "rhetorical posturing" covering
up the real reason for his dismissal-namely that the bishop retaliated against him
for reporting that Pastor Mikel Hayes called Barton "hot" and "purred and pawed"
(citation removed)).
126. See McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 859 (2005) ("Ever since
Lemon v. Kurtzman summarized the three familiar considerations for evaluating
Establishment Clause claims, looking to whether government action has 'a secular legislative
purpose' has been a common, albeit seldom dispositive, element of our cases. Though we
have found government action motivated by an illegitimate purpose only four times since
Lemon, and 'the secular purpose requirement alone may rarely be determinative .
. . ,
it
nevertheless serves an important function."' (footnotes omitted) (citations omitted)).
127. Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., 477 U.S. 619, 628
(1986).
128. Van Osdol v. Vogt, 908 P.2d 1122, 1128-29 (Colo. 1996).
129. Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1040 (7th Cir. 2006).
130. Jones v. Wolf, 443 U.S. 595, 604 (1979).
131. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 (1973).
132. Redhead v. Conference of Seventh-Day Adventists, 566 F. Supp. 2d 125, 134
(E.D.N.Y. 2008) (quoting Ganzy v. Allen Christian Sch., 995 F. Supp. 340, 349 (E.D.N.Y
1998)).
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at him. 33 Courts are capable of distinguishing between religious rhetoric and
sincerely held religious belief. The argument about pretext and religious
entanglement cannot justify the ministerial exception.
The same pretext analysis should apply to civil rights statutes that prohibit
discrimination based on race, gender, and age.
Shorthand for the central issue in many racial discrimination ministerial
exception cases is whether it was race or religion that motivated the adverse
employment action. As suggested above, a court should be able to decide that
question by examining religious motivation and by using neutral principles of law.
For example, Dennis Ross was hired as Pastor of Worship Services at the
Metropolitan Church of God in Cumming, Georgia in December 2003, where he
conducted music and created videos and CDs. Soon after Ross started his job,
however, Pastor Charles Ramsey complained about Ross's music, telling him "'this
is a white church, Shirley Caesar music won't work here,' and 'since you've come,
the church is experiencing white flight."'l 34 Ramsey also told Ross "'Latinos are
lazy,' and 'more blacks will probably join the church now that you are here, I guess
we'll get more "rims.""s 35 Ramsey then fired Ross in February 2004.
Even if Ramsey's remarks did not provide direct evidence of discrimination, a
jury could determine whether they reflected racial discrimination or harmless "stray
remarks" without ever debating the liturgical theology of the Metropolitan Church
of God. 136
Father Peter Bogan alleged that the Mississippi Conference of the United
Methodist Church put him on administrative leave for not spending at least five
nights a week at the parsonage, while Caucasian pastors who were similarly absent
faced no discipline.' 37 His case could be decided like nonreligious racial
discrimination cases in which the court considers whether race was a motivating
factor in the adverse employment action, whether employees of different races were
treated differently, and whether the church was credible in saying it really
disciplined Bogan because he was not a good priest.
The Seventh Circuit dismissed Reverend Darreyl Young's race and gender
discrimination case because she was a minister at the Northern Illinois Conference
of the United Methodist Church.' 38 Her complaint was carefully drafted. She did
not ask the court to consider the church's reasons for dismissing her or to review
133. Barton v. MikelHayes, No. 09-CV-00063, 2010 WL 980708, at *1 (N.D.N.Y.
Mar. 15, 2010).
134. Ross v. Metro. Church of God, 471 F. Supp. 2d 1306, 1308 (N.D. Ga. 2007).
135. Id.
136. In the absence of evidence of intentional discrimination, a plaintiff may establish a
prima facie racial discrimination claim under both § 1981 and Title VII by alleging facts
establishing "(1) membership in a protected class; (2) satisfactory job performance; (3)
adverse employment action with respect to compensation; and (4) that similarly-situated
employees outside the protected class received more favorable treatment." White v. BFI
Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004).
137. Bogan v. Miss. Conference of the United Methodist Church, 433 F. Supp. 2d 762,
763 (S.D. Miss. 2006).
138. Young v. N. Ill. Conference of United Methodist Church, 818 F. Supp. 1206 (N.D.
Ill. 1993), af'd, 21 F.3d 184 (7th Cir. 1994).
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her qualifications to become a church elder. Instead, she argued that the church had
not followed the usual procedures it applied to all other candidates, and in
particular, that the review panel that considered her application had a different
composition from all previous committees. 3 9 Moreover, the pastors told Young
that they failed to promote her because they disliked her sermons even though they
had never heard her preach. A neutral principles of law approach would have
allowed the court to review meeting procedures and minutes without interfering in
any question of dogma and to decide whether it was religion or discrimination that
motivated the employment decision.'
The late Judge Edward Becker understood this point when he wrote the initial
Third Circuit opinion in Petruska v. Gannon Universityl41 that was later withdrawn
due to his untimely death. Lynette Petruska was hired as a chaplain by Gannon
University, a Roman Catholic university. Accepting that only men may become
Catholic priests, Petruska asked for and received assurances that her chaplain's job
was open to women and that she would not be replaced simply because a male
priest candidate later became available. Later, her job responsibilities were
restructured after she reported the university president's sexual harassment to the
local bishop and the university provost. A man was then promoted to her former
position.142 Judge Becker rejected the application of the ministerial exception to
Petruska's case because the university offered no religious reason for firing herthe position remained open to women. "[W]here an employment decision is devoid
of religious or doctrinal content, and is based solely on sexism," he wrote, "we fail
to see how the decision relates to the free exercise of religion."1 43 If sexism is the
motivating factor, the laws prohibiting sex discrimination are violated.
The same rule should apply in the age discrimination cases. Some courts have
been optimistic about the possibilities of deciding age cases without violating the
First Amendment, especially because age discrimination is not a religious tenet
defended by any church defendants.'" Nonetheless, cases with direct evidence of
139. Id. at 1207-08.
140. Id.
141. 448 F.3d 615 (3d Cir. 2006), vacated on reh'g, 461 F.3d 294 (3d Cir. 2006), and
withdrawn. For the old unpublished opinion with full text, see Petruska v. Gannon Univ.,
No. 05-1222 (3d Cir. May 24, 2006), available at http://www.ca3.uscourts.gov/opin
arch/051222p.pdf.
142. Petruska, No. 05-1222, 2006 U.S. App. LEXIS 13135, at **5-8 (3d Cir. May 24,
2006).
143. Id. at **47.
144. See, e.g., DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993) (allowing
age discrimination case to proceed); Geary v. Visitation of Blessed Virgin Mary Parish Sch.,
7 F.3d 324 (3d Cir. 1993) (same); Ritter v. Mount St. Mary's Coll., 814 F.2d 986 (4th Cir.
1987) (same); Miller v. Intervarsity Christian Fellowship/USA, No. 09-CV-680-SLC, 2010
WL 2803123 (W.D. Wis. July 14, 2010) (same); Hendricks v. Marist Catholic High Sch.,
No. CIV. 09-6336-AA, 2010 WL 1499251 (D. Or. Apr. 12, 2010) (same); Butler v.
Archdiocese of Galveston Houston, No. CIV.A. H-08-897, 2009 WL 3837003 (S.D. Tex.
Nov. 12, 2009) (same); Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp.
2d 849 (S.D. Ind. 1998) (same); Grotke v. Canisius High Sch., No. 90-CV-1057S, 1992 WL
535400 (W.D.N.Y. Apr. 13, 1992) (same); Lukaszewski v. Nazareth Hosp., 764 F. Supp. 57
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age discrimination have been dismissed under the ministerial exception. For
example, his bishop told Rev. Ralph Minker that 'he should not expect a new
better level appointment and that Methodist pastors in their fifties cannot expect
growth opportunities in new appointments."'l 45 In another age discrimination case,
"Father Serrick personally told [Organist George Assemany] that he was too old for
the job and that Gesu was becoming a black parish and it was time it had a black
organist." 46 After making those remarks, Serrick then hired Carl Clendenning, a
twenty-eight-year-old black male, for Assemany's position.147 Methodist Rev. John
Paul Hankins was subjected to the United Methodists' mandatory retirement policy
requiring him to retire at age seventy.148 The Age Discrimination in Employment
Act (ADEA) allows some mandatory retirement policies, but whether the church
qualified for that defense was not litigated in Hankins; the case was dismissed
under the ministerial exception.149
As in any employment lawsuit, a church could win an ADEA case, especially
because the defendant is not liable "where the differentiation is based on reasonable
factors other than age."' 5 0 Thus the Maryknoll Society had good reason to win its
case against Father Henry Willen Sanchez, a sixty-eight-year-old Roman Catholic
priest who worked for Maryknoll from 1963 to 1967, but was rejected when he
sought reemployment in 1996. Maryknoll had a policy not to reemploy individuals
who had a lengthy separation from their service.15 That argument was never
considered by the court, however, which dismissed the lawsuit under the ministerial
exception. The McDonnell Douglas framework is now in question in ADEA cases,
which instead require plaintiffs to prove that age was the "but-for" cause of the
challenged adverse employment action. 152 Like burden shifting, but-for causation
does not automatically involve a theological question.
(E.D. Pa. 1991) (same); Soriano v. Xavier Univ. Corp., 687 F. Supp. 1188 (S.D. Ohio 1988)
(same).
1355 (D.C. Cir. 1990) (citation omitted).
146. Assemany v. Archdiocese of Detroit, 434 N.W.2d 233, 235 (Mich. Ct. App. 1988).
147. Id.
148. Hankins v. N.Y. Annual Conference of United Methodist Church, 351 F. App'x
489, 409-91 (2d Cir. 2009).
149. See Id. at 489; see also 29 U.S.C. § 631(c) (2006); 29 C.F.R. § 1625.12 (2005)
(explaining that the ADEA allows employers to mandate the retirement of their employees
because of their age, provided those employees meet three criteria: (1) the employee is sixtyfive or older, (2) the employee is entitled to collect a retirement benefit of at least $44,000
annually, and (3) the employee was employed in a "bona fide executive" or "high
policymaking" position for the two years immediately prior to retirement).
150. 29 U.S.C. § 623(f)(1) (2006).
151. Sanchez v. Catholic Foreign Soc'y of Am., 82 F. Supp. 2d 1338, 1339 (M.D. Fla.
1999).
152. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009) ("The burden of
persuasion does not shift to the employer to show that it would have taken the action
regardless of age, even when a plaintiff has produced some evidence that age was one
motivating factor in that decision."); Clark v. Matthews Int'l Corp., 628 F.3d 462, 469 (8th
Cir. 2010) ("[The plaintiff] is required to prove that his age was the 'but-for' cause of [the
employer's] challenged decisions regardless of whether he uses direct or circumstantial
evidence to prove his age-discrimination claims.").
2013]
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The reasoning in favor of the ministerial exception even when a religious
justification is not offered for the employer's conduct is explained in a Seventh
Circuit age discrimination opinion written by Judge Posner.'53 Richard Tomic
worked as a music director and organist at St. Mary's Cathedral in Peoria and for
the Roman Catholic Peoria Diocese. Tomic, who was fifty and was not an ordained
Catholic priest, alleged that the diocese fired him because of his age and replaced
him with a younger man.'1 As in most of the ministerial exception cases, the facts
are tantalizingly brief.'55 Tomic's complaint suggests that problems arose when
Tomic disagreed with a priest about the scheduling of choir practices during Easter
week: Tomic "had expressed his concerns to Rev. Gray that the scheduling he
(Gray) was requesting would have a detrimental effect on the music scheduled for
Easter week." 156 After the firing, moreover, the church contested Tomic's
application for unemployment compensation; "the Diocese first took the position
that plaintiff left his job voluntarily and later took the position that he was
terminated for misconduct."' 57
Surely that case should get to court, because the church did not have a religious
tenet of age discrimination, the nature of the dispute was not theological, and the
diocese's changing story suggests pretext and undermines credibility, correct? No,
explained Judge Posner:
[T]his is not correct, because the church would be likely to defend its
employment action on grounds related to church needs rooted in church
doctrine. The reference in the complaint in this case to the dispute
between Tomic and the bishop's assistant suggests that if the suit were
permitted to go forward, the diocese would argue that he was dismissed
for a religious reason-his opinion concerning the suitability of
particular music for Easter services-and the argument could propel the
court into a controversy, quintessentially religious, over what is suitable
music for Easter services. Tomic would argue that the church's
criticism of his musical choices was a pretext for firing him, that the
real reason was his age. The church would rebut with evidence of what
the liturgically proper music is for an Easter Mass and Tomic might in
153. See Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006).
154. Id. at 1037.
155. Id. Age discrimination cases without facts are also prevalent. See, e.g., Skrzypczak
v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238 (10th Cir. 2010); Clapper v. Chesapeake
Conference of Seventh-Day Adventists, No. 97-2648, 1998 WL 904528 (4th Cir. Dec. 29,
1998); Hopkins v. DeVeaux, 781 F. Supp. 2d 1283 (N.D. Ga. 2011); Musante v. Notre Dame
of Easton Church, No. Civ. A. 301CV2352MRK, 2004 WL 721774 (D. Conn. Mar. 30,
2004);; Powell v. Stafford, 859 F. Supp. 1343 (D. Colo. 1994); Temple Emanuel of Newton
v. Mass. Comm'n Against Discrimination, No. Civ. A. 09-1950, 2009 WL 1668550 (Mass.
Super. Ct. June 2, 2009); Coulee Catholic Sch. v. Labor & Indus. Review Comm'n, 2009 WI
88, 320 Wis. 2d 275, 768 N.W.2d 868.
156. Brief and Required Short Appendix of Plaintiff-Appellant, Richard Tomic at 4,
Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006), 2005 WL 5806789.
157. Id. at 4-5.
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turn dispute the church's claim. The court would be asked to resolve a
theological dispute. 158
The contrast between the opinion and the facts of the case undermines the
Seventh Circuit's rationale. The court first imagined its own theological dispute
over music while the parties were arguing about scheduling, possibly turning a
secular dispute into a doctrinal one. Second-like all the courts that have adopted
the ministerial exception-the court engaged in actual theological analysis before
ruling it could not resolve a questionably theological issue. After all, the court
made a doctrinal ruling that Tomic was a minister, even though he was not a priest.
Music, it ruled, is central to liturgy and therefore a musician must be a minister.
Now the Supreme Court appears to have adopted even stronger reasoning than
the Seventh Circuit's: that the courts cannot get away from religion even in a
secular dispute. Again, the Court has provided no rationale for siding with religious
employers over religious employees in such circumstances. The only reason it
seems to provide is that ministers are different. The next Part reviews the question
of who now qualifies as a minister for ministerial exception purposes.
V. WHO IS A MINISTER?
Obviously (and not) the ministerial exception applies to ministers. HosannaTabor clarified that the ministerial exception is a defense on the merits rather than a
jurisdictional bar.159 The exception is an affirmative defense because the issue is
"whether the allegations the plaintiff makes entitle him to relief," not whether the
court has "power to hear [the] case."o60 Therefore district courts have the power to
decide whether employment claims can proceed or are barred by the affirmative
defense of the ministerial exception. Presumably, the primary question to be
determined by the trial courts is whether the employee is a minister or not. The
following sections argue that the test for a minister remains problematic and
excessively deferential to religious institutions. Part V.A explains that the question
of ministerial status is always a theological question unsuited for determination by
the courts. Part V.B examines the ambiguity of the Court's suggestion that some
breach of contract lawsuits may proceed despite the ministerial exception. Part V.C
explores whether the courts may continue to hear tort disputes involving ministers.
A. Ministry Is Always a Theological Question
As argued in Part II, Hosanna-Taboravoids the question why ministers should
be denied the protection of the employment laws. Moreover, there is no neutral and
secular legal manner to resolve the question of who qualifies as a minister. On the
grounds that they may not become entangled in a religious employer's decision
making, the courts regularly became entwined in a more theological question by
158. Tomic, 442 F.3d at 1040 (citations omitted).
n.4 (2012).
160. Id. (quoting Morrison v. Nat'l Austl. Bank Ltd., 130 S. Ct. 2869, 2877 (2010)
(internal quotation marks omitted)).
2013]
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deciding who should count as a minister. As Ninth Circuit Judge Alex Kozinski
wrote, "[t]he very invocation of the ministerial exemption requires us to engage in
entanglement [with religion] with a vengeance." 16 1
The ministerial exception has never been limited to clergy or ordained ministers.
The courts have turned theological cartwheels to transform elementary and
secondary school teachers, university and seminary professors, school principals,
communications managers, administrative personnel, music directors, organists,
and musicians into ministers.162 The effect has been especially strong on teacherselementary and high school teachers, school principals, college and university
instructors and professors-who the courts have turned into ministers, denying
them the protection of the disability, age, gender, pregnancy, race, sexual
harassment, and breach of contract laws.' 63 Several courts relied upon the
ministerial exception to dismiss lawsuits of university professors without review of
their academic qualifications or employment records.16
One irony and injustice in the ministerial rule is that female employees of
denominations that do not ordain women suddenly became ministers at the moment
they filed a lawsuit. Although some Roman Catholic, Muslim, and Orthodox
161. Elvig v. Calvin Presbyterian Church, 397 F.3d 790, 797 (9th Cir. 2005) (Kozinski,
J., concurring in the denial of rehearing en banc).
162. See, e.g., Tomic, 442 F.3d 1036 (holding music director could not bring ADEA
claim); Pardue v. Ctr. City of Consortium Sch., 875 A.2d 669 (D.C. Cir. 2005) (dismissing
school principal's race and retaliation claim); Alicea-Hemandez v. Catholic Bishop of Chi.,
320 F.3d 698 (7th Cir. 2003) (holding that Hispanic communications manager could not
bring Title VII national origin claim); Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999)
(dismissing choirmaster's ADA claim); Clapper v. Chesapeake Conference of Seventh-Day
Adventists, No. 97-2648, 1998 WL 904528 (4th Cir. Dec. 29, 1998) (dismissing elementary
school teacher's ADEA claim).
163. See, e.g., Clapper, 1998 WL 904528 (dismissing elementary school teacher's ADEA
claim); Pardue, 875 A.2d 699 (school principal's race and retaliation claim dismissed);
Redhead v. Conference of Seventh-Day Adventists, 566 F. Supp. 2d 125 (E.D.N.Y. 2008)
(dismissing elementary school teacher's pregnancy discrimination lawsuit); Stately v. Indian
Cmty. Sch. of Milwaukee, Inc., 351 F. Supp. 2d 858 (E.D. Wis. 2004) (dismissing
elementary and middle school teacher's race and religion discrimination claim); Temple
Emanuel of Newton v. Mass Comm'n Against Discrimination, No. CIV.A. 09-1950, 2009
WL 1668550 (Mass. Super. Ct. June 2, 2009) (dismissing Hebrew Day School teacher's age
discrimination suit); Sabatino v. Saint Aloysius Parish, 672 A.2d 217 (N.J. Super. Ct. App.
Div. 1996) (dismissing high school principal's breach of contract claim); Coulee Catholic
Sch. v. Labor & Indus. Review Comm'n, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868
(dismissing first grade teacher's age discrimination case).
164. See, e.g., EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996) (dismissing
canon law professor's Title VII sex discrimination case); Klouda v. Sw. Baptist Theological
Seminary, 543 F. Supp. 2d 594 (N.D. Tex. 2008) (dismissing seminary professor's breach of
contract case); Hope Int'l Univ. v. Superior Court, 119 Cal. App. 4th 719 (2004) (dismissing
case where psychologists who were Marriage and Family Therapy professors had marital
discrimination); McEnroy v. St. Meinrad Sch. of Theology, 713 N.E.2d 334 (Ind. Ct. App.
1999) (dismissing seminary professor's breach of contract case); Alicea v. New Brunswick
Theological Seminary, 608 A.2d 218 (N.J. 1992) (dismissing theology professor's breach of
contract claim); Jocz v. Labor & Indus. Review Comm'n, 538 N.W.2d 588 (Wis. Ct. App.
1995) (dismissing seminary director of field education's sex discrimination lawsuit).
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Jewish women may not become priests, imams, or rabbis and perform their jobs
with the full understanding that they cannot be ministers, the courts and churches
confer ministerial status upon them just long enough to keep their lawsuits out of
court.165 This situation is the clearest proof that the ministerial exception unfairly
overprotects the rights of institutions at the expense of individuals.
The injustices continue post-Hosanna-Tabor. A Kentucky court ruled that a
tenured Jewish scholar of Jewish Studies at a Disciples of Christ seminary was a
minister whose breach of contract lawsuit must be dismissed.'66 The dissenting
justice wisely complained, "A basic tenet of Christianity is that Jesus Christ is the
Son of God. Judaism does not accept that tenet. Therefore, it appears that, because
of this seminal difference, Kant, as a practicing Jew, would not be qualified to be a
minister of any Christian faith."' 6 In the courts, however, Catholic women become
priests and Jewish scholars turn out to be Christian ministers.
Although all the circuit courts agreed before Hosanna-Taborwas decided that
the Religion Clauses require a ministerial exception, they disagreed about who
qualifies as a minister. The Sixth Circuit relied upon a "primary duties" test to
determine that Perich was not a minister. As the name suggests, that test often
counted the minutes in the employee's day to determine if her activity was
primarily secular or religious. If Perich or another teacher taught reading, writing,
and arithmetic all day with only a little time for religion, she could be labeled a
teacher instead of a minister and have her day in court. Chief Justice Roberts
rejected such an approach when he wrote that ministerial status "is not one that can
be resolved by a stopwatch." 6 8
In Hosanna-Tabor's argument before the Court, Professor Douglas Laycock
argued for an important religious functions test, where the question is whether the
employee performed any important religious functions. 16 Because of the concerns
about religious entanglement, Laycock urged judicial deference toward the
165. For examples of cases involving Catholic women deemed ministers for purposes of
the ministerial exception, see Skrzypezak v. Roman Catholic Diocese of Tulsa, 611 F.3d
1238, 1240 (10th Cir. 2010) (involving Catholic Director of Religious Formation); Petruska
v. Gannon Univ., 462 F.3d 294 (3d Cir. 2006) (involving non-ordained chaplain assured
women were eligible for her position); Pardue, 875 A.2d 669 (involving school principal);
Alicea-Hernandez, 320 F.3d 698 (involving Catholic communications director); Musante v.
Notre Dame of Easton Church, No. CIV.A. 301CV2352MRK, 2004 WL 721774 (D. Conn.
Mar. 30, 2004) (involving Director of Religious Education); Archdiocese of Miami, Inc. v.
Mifiagorri, 954 So. 2d 640 (Fla. Dist. Ct. App. 2007) (involving school principal);
Brazauskas v. Fort Wayne-S. Bend Diocese, Inc., 796 N.E.2d 286 (Ind. 2003) (involving
Director of Religious Education); Weishuhn v. Catholic Diocese of Lansing, 756 N.W.2d
483 (Mich. Ct. App. 2008) (involving elementary school teacher); Sabatino, 672 A.2d 217
(involving high school principal); Coulee Catholic Sch., 768 N.W.2d 868 (involving first
grade teacher).
166. See Kant v. Lexington Theological Seminary, No. 201 1-CA-000004-MR, 2012 WL
3046472 (Ky. Ct. App. July 27, 2012).
167. Id. at *15 (Keller, J., dissenting).
(2012).
169. Brief for the Petitioner at 22, Hosanna-Tabor Evangelical Lutheran Church & Sch.
v. EEOC, 132 S. Ct. 694 (2012) (No. 10-553).
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churches' definition of who counts as a minister. Justice Thomas agreed; his
concurrence concluded that courts should "defer to a religious organization's goodfaith understanding of who qualifies as its minister."o7 0 Justice Thomas's approach
gives religious organizations broad freedom to violate the law; all they have to do
is invoke ministerial status in order to win their lawsuits.
The other eight Justices provided minimal guidance for future cases. The Court
rejected the EEOC's idea that a minister performs "exclusively religious
functions,"' 7 ' perhaps influenced by the Chief Justice's clever quip that although
the Pope performs numerous secular duties in Vatican City, he is undoubtedly a
minister.172 In resolving the ministerial question, the Court instead emphasized the
facts that Hosanna-Tabor considered Perich to be a minister, and that Perich
accepted the formal call to religious service and claimed a minister's housing
allowance on her tax return. Ministerial status was thus based on "the formal title
given Perich by the Church, the substance reflected in that title, her own use of that
title, and the important religious functions she performed for the Church."' 73 Any
employee "conveying the Church's message and carrying out its mission" is
presumed to be a minister. 174
Justice Alito, joined by Justice Kagan, wrote that the word minister,
should apply to any "employee" who leads a religious organization,
conducts worship services or important religious ceremonies or rituals,
or serves as a messenger or teacher of its faith.
. .
. These include those
who serve in positions of leadership, those who perform important
functions in worship services and in the performance of religious
ceremonies and rituals, and those who are entrusted with teaching and
conveying the tenets of the faith to the next generation.175
All the Justices were concerned that "minister" be interpreted broadly enough to
include non-Christian clergy of whatever title as well as denominations that lack
official clergy.
Following those definitions, it is possible that some past ministerial exception
cases were wrongly dismissed and that some limited future victories await plaintiffs
in similar circumstances. On the other hand, the Court's new test may cover some
employees, especially teachers, who were previously allowed to sue.
Presumably, a non-Catholic teacher in a Catholic school is still not a minister." 6
What about a lay math teacher at a parochial high school who also led students in
prayer and took students to mass? In the Second Circuit he was not a minister;
170. Hosanna-Tabor,132 S. Ct. at 710 (Thomas, J., concurring).
171.
Id. at 708-09.
172. Transcript of Oral Argument at 47, Hosanna-Tabor Evangelical Lutheran Church &
Sch. v. EEOC, 132 S. Ct. 694 (2012) (No. 10-553).
174. Id.
175. Id. at 712 (Alito, J., concurring).
176. See, e.g., Braun v. St. Pius X Parish, No. 09-CV-779-GKF-TLW, 2011 WL
5086362 (N.D. Okla. Oct. 25, 2011). But see Kant v. Lexington Theological Seminary, No.
2011-CA-000004-MR, 2012 WL 3046472 (Ky. Ct. App. July 27, 2012) (Jewish Studies
professor is a Christian minister for purposes of the ministerial exception).
.
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would the Supreme Court ordain him?'" Could a teacher who taught "exclusively
secular subjects" now become a minister if his employers believe that all teachers
"carry[] out its mission"?' 8 Will the Court describe religious studies as an
academic discipline, or does anyone teaching "religion" become a minister?' 79 In
the past, church schools that believed that all employees were ministers were
required to pay equal wages to women even when it violated biblical teaching.,so
Does the Court's careful acknowledgment of churches in which everyone is a
minister mean that those precedents are no longer good law?
Especially interesting are cases such as that of Alicia Hernandez, a press
secretary for a Catholic diocese. A "press secretary is responsible for conveying the
message of an organization to the public as a whole[,] . . . is often the primary
communications link to the general populace[,] . . . [and] is critical in message
dissemination."' 8' Are all press secretaries now ministers because they "convey[]
the Church's message"? 82
With Hosanna-Taborlimited to its facts, the trial courts will still struggle with
an eminently theological question of church ministry. If the ministerial definition is
unclear, they will undoubtedly do what they have done in the past: avoid any
possible entanglement with religion. The best way to avoid entanglement is to
dismiss a case. The ministerial rule always favors employers.
B. The Breach of ContractException
The Supreme Court left an opening for some lawsuits by religious employees
when it stated "[w]e express no view on whether the exception bars other types of
suits, including actions by employees alleging breach of contract or tortious
conduct by their religious employers."' 8 3
Long before Hosanna-Tabor was decided, some appeals courts distinguished
breach of contract cases from antidiscrimination lawsuits. Three stated reasons for
the difference were that churches may voluntarily burden themselves with
contracts, 18 contracts are not matters of theological doctrine, and awarding purely
monetary damages on a contract claim does not entangle the courts with religion.
177. See DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993).
178. Hosanna-Tabor, 132 S. Ct. at 708; see also Butler v. Archdiocese of Galveston
Houston, No. H-08-897, 2009 WL 3837003 (S.D. Tex. Nov. 12, 2009).
179. See, e.g., Hendricks v. Marist Catholic High Sch., CIV. 09-6336-AA, 2010 WL
1499251 (D. Or. Apr. 12, 2010); Hartwig v. Albertus Magnus Coll., 93 F. Supp. 2d 200 (D.
Conn. 2000); Kant, at *15 (Keller, J., dissenting) (expressing concern that majority had lost
sight of distinction between teaching religion and teaching about religion in dismissing
lawsuit of Jewish Studies professor at a Christian seminary).
180. See, e.g., EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986); EEOC v.
Pac. Press Publ'g Ass'n, 676 F.2d 1272, 1280 (9th Cir. 1982).
181. Alicea-Hemandez v. Catholic Bishop of Chi., 320 F.3d 698, 704 (7th Cir. 2003).
183. Id. at 710.
1359 (D.C. Cir. 1990) (citing Watson v. Jones, 80 U.S. (13 Wall.) 679, 714 (1871)).
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8
the
Minker v. Baltimore Annual Conference of United Methodist Church,'1
D.C. Circuit's leading ministerial exception case, illustrates this point. The court
rejected Methodist Minister Ralph Minker's age-discrimination lawsuit under the
ministerial exception. It also dismissed his breach of contract claim that the church
had violated the Methodist Book of Discipline, which states "appointments are to
be made without regard to race, ethnic origin, sex, color, or age, except for the
provisions of mandatory retirement."' 86 The court dismissed that contract claim
because it "could not interpret or enforce such a provision without running afoul of
the first amendment" by construing the theological book. 187
Nonetheless, the court remanded Minker's breach of contract claim based on the
church's oral promise that Minker "would be moved to a congregation more suited
to his training and skills, and more appropriate in level of income, at the earliest
appropriate time."' 88 In those secular circumstances, the court thought that "the
issue of breach of contract can be adduced by a fairly direct inquiry into whether
appellant's superintendent promised him a more suitable congregation, whether
appellant gave consideration in exchange for that promise, and whether such
congregations became available but were not offered to Pastor Minker."' 89
The court also recognized that breach of contract litigation would result in
"[m]oney damages alone." 90 The limitation to money damages is important.
Successful employment-discrimination plaintiffs are entitled to remedies that make
them whole, including back pay, compensatory damages, punitive damages, front
pay, and reinstatement to the job.'9' Proponents of a strong ministerial exception
believe that the First Amendment prohibits any award of damages against religious
employers and accordingly urge the dismissal of all religious employment
lawsuits.1 92 Among all the potential remedies, however, the idea of reinstatement of
an employee to a ministerial position has been particularly troubling to the courts
and church defendants. Indeed, Hosanna-Tabor identified reinstatement as
"[p]erhaps the most fundamental problem with discrimination suits by ministers[,]"
likening reinstatement to the government's appointment of ministers in an
established church. 193
Cheryl Perich's lawyers took that argument seriously and emphasized that she
was not seeking reinstatement but still deserved other damages such as back pay
and front pay.194 Despite Perich's loss, the Court may be sympathetic to a breach of
contract claim without the possibility of reinstatement that is limited to monetary
185. Id.
186. Id. (internal quotations omitted).
187.
188.
189.
190.
Id.
Id. at 1355 (internal quotations omitted).
Id. at 1360.
Id.
191. Robert E. Talbot, A PracticalGuide to Representing Parties in EEOC Mediations,
37 U.S.F. L. REv. 627, 643-44 (2003).
192. Brief for the Petitioner at 24, Hosanna-Tabor Evangelical Lutheran Church & Sch.
v. EEOC, 132 S. Ct. 694 (2012) (No. 10-533).
193. Id. at 26.
194. Brief for Respondent Cheryl Perich at 59, Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) (No. 10-553).
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loss. Monetary damages appear far from the governmental-appointment-ofministers concern that persuaded the Justices to rule against Perich.
Such reasoning explains and justifies the results of Bollard and McKelvey, the
two seminarian cases where reinstatement was not a remedy but monetary damages
were.' 95 In other religious breach of contract cases, ministers have been allowed to
sue for payment of salary for services already rendered,' 9 6 for the difference
between short-term disability benefits and salary,' 9 7 for a congregation's failure to
pay into a rabbi's retirement fund,'9 8 and for terminating the employee's contract
without a proper notice and meeting.199 Post Hosanna-Tabor, two courts have
already ruled that actual ministers-pastors with the Presbyterian Church and the
African Methodist Episcopal Church, respectively-may pursue breach of contract
claims for wages due on past work already completed without even citing
Hosanna-Tabor.200
Yet Minker also created a loophole that has been applied to other breach of
contract cases; it cautioned that even Minker's contract case must be dismissed if
the court became entangled in any theological controversy or ecclesiastical policy.
Unfortunately, a quick trip to entanglement takes place when the employer asserts
that the contract was not enforced because the employee was not qualified for the
job or performed the job poorly. For example, Episcopal priest Janet Kraft tried to
enforce an employment contract that entitled her to certain benefits if her
termination occurred without cause. She contested the church's allegation that she
was fired for making improper expenditures on the church's credit card.201' Highschool principal Patricia Dayner alleged that her firing by Father Bzdyra was
"motivated by or in retaliation for [her] refusal to 'stick up for him' regarding his
unwanted sexual remarks to eighth grade girls."202 Both contract lawsuits were
dismissed because the courts feared theological issues in the discussions of how
Reverend Kraft had spent the money or why Father Bzdyra had dismissed Principal
Dayner.
Even some cases that appear more purely economic, for example, a church's
refusal to pay workers' compensation for a priest-employee who was injured lifting
195. See Bollard v. Cal. Province of the Soc'y of Jesus, 196 F.3d 940, 950-51 (9th Cir.
1999); McKelvey v. Pierce, 173 N.J. 26 (2002).
196. Goodman v. Temple Shir Ami, Inc., 712 So. 2d 775, 777 (Fla. Dist. Ct. App. 1998).
197. Errgong-Weider v. United Congregational Church of Norwalk, No.
FSTCVl 16009458S, 2011 WL 5842378 (Conn. Super. Ct. Oct. 25, 2011).
198. Elbaz v. Congregation Beth Judea, Inc., 812 F. Supp. 802 (N.D. Ill. 1992).
199. Errgong-Weider,2011 WL 5842378.
200. See Second Episcopal Dist. African Methodist Church v. Prioleau, 49 A.3d 812
(D.C. Cir. 2012); Crymes v. Grace Hope Presbyterian Church, Inc., No. 201 1-CA-000746-
MR, 2012 WL 3236290 (Ky. Ct. App. Aug. 10, 2012).
201. Kraft v. Rector, Churchwardens & Vestry of Grace Church, No. 01-CV-7871
(KMW), 2004 WL 540327 (S.D.N.Y. Mar. 17, 2004); see also Friedlander v. Port Jewish
Ctr., 347 F. App'x 654, 655 (2d Cir. 2009), cert. denied, 130 S. Ct. 1714 (2010); Leavy v.
Congregation Beth Shalom, 490 F. Supp. 2d 1011, 1021 (N.D. Iowa 2007).
202. Dayner v. Archdiocese of Hartford, 23 A.3d 1192, 1198 (Conn. 2011) (quoting the
trial court); see also Marshall v. Munro, 845 P.2d 424 (Alaska 1993); McDonnell v.
Episcopal Diocese of Georgia, 381 S.E.2d 126 (Ga. Ct. App. 1989).
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a television; 203 an employee who was fired allegedly because his organization lost
funding; 204 a church's provision of inadequate medical care to a missionaryemployee overseas;205 or a church's failure to provide food, clothes, housing, and
medical care to another overseas missionary, 206 have all been dismissed under fear
of entanglement. An exception for breach of contract will not solve the core
problems of the ministerial exception rule.
C. The Tortious Conduct Exception
The Supreme Court also left an opening for some lawsuits by religious
employees alleging tortious conduct by their religious employers. 207 Torts have
enjoyed a mixed reception in prior ministerial exception cases. In the Second
Circuit, for example, the ministerial exception "plainly [did] not create for religious
institutions a charmed existence free from liability for their torts and upon their
valid contracts."208 "[A] plaintiff alleging particular wrongs by the church that are
wholly non-religious in character is surely not forbidden his day in court. The
minister struck on the head by a falling gargoyle as he is about to enter the church
may have an actionable claim."209
Torts may have attracted the Court's attention because of general concerns about
the extensive sexual abuse of children by clergy 210 and a Michigan case that had a
certiorari petition before the Court while Hosanna-Tabor was argued. Michigan
elementary school teacher Madeline Weishuhn was fired by a Catholic school
principal for reporting possible sexual abuse of a student's friend to state
authorities. 211 Even though Weishuhn was a required reporter of abuse under state
law, Michigan state courts dismissed her whistleblowers lawsuit under the
212
At oral argument, Justice Sotomayor asked Hosannaministerial exception.
203. Malichi v. Archdiocese of Miami, 945 So. 2d 526, 528 (Fla. Dist. Ct. App. 2006).
204. Bell v. Presbyterian Church (U.S.A.), 126 F.3d 328, 330 (4th Cir. 1997).
205. Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877 (Tex. Ct.
App. 2000).
206. Dowd v. Soc'y of St. Columbans, 861 F.2d 761, 762 (1st Cir. 1988).
(2012).
208. Guerrier v. S. New England Conference Ass'n of Seventh Day Adventists, Inc., No.
CV085007824, 2009 WL 4282894, at *3 (Conn. Super. Ct. Nov. 12, 2009) (citing
Friedlander v. Port Jewish Ctr., 588 F. Supp. 2d 428, 431 (E.D.N.Y. 2008)).
209. Guerrier,2009 WL 4282894 at *3 (emphasis added) (citing Rweyemamu v. Cote,
520 F.3d 198, 208 (2d Cir. 2008).
210. See Brief of Amicus Curiae BishopAccountability.org et al., Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012) (No. 10-553).
211. Weishuhn v. Catholic Diocese of Lansing, 756 N.W.2d 483 (Mich. Ct. App. 2008).
212. Id.; Petition for Writ of Certiorari at 16 n.2, Weishuhn v. Catholic Diocese of
Lansing, 2010 WL 5043331 (2012) (No. 10-760), cert. denied, 132 S. Ct. 1088 (2012); see
also Richard Renner, Supreme Court Considers Whistleblower Protectionfor "Ministerial
Employees," WHISTLEBLOWERS PROTECTION BLOG (Mar. 28, 2011), http://www.whistle
blowersblog.org/2011/03/articles/corporate-1/supreme-court-considers-whistleblower-protect
ion-for-ministerial-employees/.
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Tabor's lawyer, "How about a teacher who reports sexual abuse to the government
and is fired because of that reporting?" 213
In response, Professor Laycock distinguished between the government's interest
in protecting ministers from discrimination and the government's interest in
protecting children from abuse:
If the government's interest is in protecting ministers from
discrimination, we are squarely within the heart of the ministerial
exception. If the government's interest is something quite different
from that, like protecting the children, then you can assess whether that
government interest is sufficiently compelling to justify interfering with
the relationship between the church and its ministers. But the
government's interest is at its nadir when the claim is: We want to
protect these ministers as such. We want to tell the churches what
criteria they should apply for-for selecting and removing ministers.214
In other words, the government has some interest in protecting children from abuse
but no interest in protecting ministers from discrimination. Weishuhn should lose
her case.
Laycock's answer suggests that some third-party tort lawsuits do not violate the
First Amendment. If a victim of sexual abuse sues a bishop for his negligent
supervision of an abuser-priest, then presumably the government's interest prevails
and the fear of governmental intrusion upon ministerial decisions does not apply. 21 5
More usual are lawsuits like Weishuhn's, where employee-whistleblowers
allege that they faced retaliatory firing for their protected legal conduct. Catholic
school principal Yolanda Mifiagorri was fired after she complained to the
Archdiocese of Miami that her supervisor, Father Jesus Saldana, assaulted and
battered her.216 Organist William Moersen was fired after he reported his own sex
abuse to church officials.2 1 7 Father John Conley was punished and defamed after
reporting another priest's sexual misconduct. 218 Chapman University Chaplain
Shaunie Schmoll had her work hours cut in half after she reported the sexual
harassment of students by two faculty members.219 Margie Weiter was fired from
her bookkeeper/receptionist job with the Archdiocese of Louisville after she
213. Transcript of Oral Argument at 5, Hosanna-Tabor Evangelical Lutheran Church &
Sch. v. EEOC, 132 S. Ct. 694 (2012) (No. 10-553).
214. Id. at 6-7.
215. See Malicki v. Doe, 814 So. 2d 347, 351 (Fla. 2002) ("We conclude that the First
Amendment does not provide a shield behind which a church may avoid liability for harm
caused to an adult and a child parishioner arising from the alleged sexual assault or battery
by one of its clergy, and accordingly approve the Third District's decision. We thus join the
majority of both state and federal jurisdictions that have found no First Amendment bar
under similar circumstances."); id. at 351 n.2 (collecting cases with that holding).
216. Archdiocese of Miami, Inc. v. Mifiagorri, 954 So. 2d 640 (Fla. Dist. Ct. App. 2007).
217. Archdiocese of Washington v. Moersen, 925 A.2d 659 (Md. Ct. App. 2007).
218. Conley v. Roman Catholic Archbishop of S.F., 102 Cal. Rptr. 2d 679, 682 (Cal. Ct.
App. 2000).
219. Schmoll v. Chapman Univ., 83 Cal. Rptr. 2d 426 (Cal. Ct. App. 1999).
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reported instances of clergy sexual abuse. 220 Rabbi Steven Ballaban alleged that he
was fired after he reported improper physical contact between a teacher and a
student. 221 Gannon University Chaplain Lynette Petruska's job responsibilities
were restructured after she reported the university president's sexual harassment to
the local bishop and the university provost. 222 Vineyard Community Church
workers Sandi Horine and Greg Williams were fired after they consulted with an
attorney about the possibility that their church was violating employment laws
against sex discrimination. 223 Reverend Julius Baker was fired after he reported his
suspicions that African Methodist Episcopal Church bishops had converted church
funds for their own personal use and failed to pay federal income tax.224 Christian
Methodist Episcopal Church Reverend Lee Otis Gellington helped his coworker
Veronica Little, who suffered sexual advances from her supervisor, to draft a
complaint to the bishop. Soon after he was asked to transfer to a church over 800
miles away, where he would receive reduced pay.225
Gellington is striking because of its similarities to a later Supreme Court case
permitting Roderick Jackson, a male girls' high school basketball coach who
complained that his team did not receive equal funding, to assert a Title VII
retaliation claim even though he was not the victim of sex discrimination.226
Moreover, recent Supreme Court decisions have insisted, "Title Vll's
antiretaliation provision must be construed to cover a broad range of employer
conduct." 227 Yet Gellington, like most of the other cases mentioned in this section,
was dismissed under the ministerial exception. 228
Some courts have held religious employers accountable for libel and intentional
interference with expectancy of employment.229 Others have dismissed defamation
and tortious blacklisting claims. 230 Perhaps courts will now construe the torts
220. Weiter v. Kurtz, No. 2011-CA-001058-MR, 2012 WL 6213759 (Ky. Ct. App. Dec.
2012) (wrongful termination lawsuit not allowed to proceed).
221. Ballaban v. Bloomington Jewish Cmty., Inc., No. 53A01-1207-CT-315, 2013 Ind.
App. LEXIS 15 (Ind. Ct. App. Jan. 17, 2013).
222. Petruska v. Gannon Univ., 462 F.3d 294 (3d Cir. 2006).
223. Horine v. Vineyard Cmty. Church, 1st Dist. No. C-060097, 2006-Ohio-6620 (Dec.
15, 2006).
224. Baker v. African Methodist Episcopal Church, No. 3-01-CV-2485-M, 2002 WL
1840931 (N.D. Tex. Aug. 8,2002).
225. Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1301
(11th Cir. 2000); see also Young v. N. Illinois Conference of United Methodist Church, 21
F.3d 184 (7th Cir. 1994) (regarding retaliation in race and sex discrimination context).
226. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 179 (2005).
227. Thompson v. N. Am. Stainless, LP, 131 S. Ct. 863, 868 (2011); see also Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) ("Interpreting the antiretaliation
provision to provide broad protection from retaliation helps ensure the cooperation upon
which accomplishment of the Act's primary objective depends.").
228. Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299 (11th Cir.
2000).
229. Drevlow v. Lutheran Church, Mo. Synod, 991 F.2d 468 (8th Cir. 1993).
230. E.g., Brazauskas v. Fort Wayne-S. Bend Diocese, Inc., 796 N.E.2d 286 (Ind. 2003)
(dismissing blacklisting lawsuit under the ministerial exception); Callahan v. First
Congregational Church, 808 N.E.2d 301 (Mass. 2004) (holding tortious interference and
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exception expansively due to the dicta in Hosanna-Tabor. But there is no
requirement to do so. 23' As in the definition of minister and breach of contract
areas, the fear of entanglement may shut these cases down.
A better option would be to have the same tort, contract, and employment law
for everyone. The Conclusion explains some avenues to that goal.
CONCLUSION
Although Hosanna-Tabor promises to be a decision limited to its facts, its
reasoning presents a disturbing portrait of the First Amendment. Individual
ministers fall outside the protection of the antidiscrimination laws.232 Individual
religious believers are subject to the rule of Smith, while institutions are not.233
Institutional religious freedom allows the firing of ministerial employees for any
reasons, even nonreligious ones. 234 The test of who qualifies as a minister is vague
enough that courts will continue to engage in theological discussion to resolve that
controversy. 235 The rule always favors employers. A unanimous Court appeared
dismissive of the idea that religious employees should have their day in court. The
Court forgot that to exempt religious organizations from "neutral laws of general
applicability"23 6 "would be to make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit every [religious organization]
to become a law unto himself." 237
The Court had less drastic options than to accept a ministerial exception that
puts religious organizations above and outside the law. As noted above, the favorite
straw woman is that without the exception courts will force denominations with allmale clergy to accept women priests. Using the ministerial exception to address
that problem, however, is like swatting a fly with a sledgehammer. Title VII allows
employers to use religion, sex, or national origin as a bona fide occupational
qualification (BFOQ) whenever "reasonably necessary to the normal operation of
that particular business or enterprise." 238 Gender-based BFOQs are disfavored and
defamation were internal affairs and so not subject to lawsuit).
231. See Ballaban v. Bloomington Jewish Cmty., No. 53A01-1207-CT-315, Inc., 2013
Ind. App. LEXIS 15, at *25 (Ind. Ct. App. Jan. 17, 2013) (because there was evidence in the
record that Rabbi Ballaban was dismissed for other reasons, the court need not answer the
question whether the ministerial exception applies when a minister reports child abuse or
neglect). But see id. at 32-33 (Vaidik, J., concurring) ("the ministerial exception does not
allow a congregation to fire a spiritual leader who refuses to commit a criminal offense"; in
Indiana, failure to report child abuse is a criminal offense).
232. See supraPart II.
233. See supra Part III.
234. See supraPart IV.
235. See supra Part V.
236. Emp't Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872, 901 (1990)
(O'Connor, J., concurring).
237. Id. at 879 (quoting Reynolds v. United States, 98 U.S. 145 (1878)).
238. 42 U.S.C. § 2000e-2(e) (2006) ("Notwithstanding any other provision of this
subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and
employ employees, for an employment agency to classify, or refer for employment any
individual, for a labor organization to classify its membership or to classify or refer for
employment any individual, or for an employer, labor organization, or joint labor-
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may be invoked "only when the essence of the business operation would be
undermined" by hiring individuals of both sexes. 239
Gender-based BFOQs have been allowed in some circumstances, such as airport
security screeners and prison guards. It is likely that religions would have at least as
easy a time as a government employer in proving BFOQ in the context of ordaining
women. The Roman Catholic Church, for example, argues that Scripture, the
experience of Jesus and the Apostles, and its two-millennia-old tradition require an
all-male priesthood. Moreover, theologically speaking only men can represent
Jesuswhen Christ's role in the Eucharist is to be expressed sacramentally,
there would not be this "natural resemblance" which must exist
between Christ and his minister if the role of Christ were not taken by a
man: in such a case it would be difficult to see in the minister the image
of Christ. For Christ himself was and remains a man.240
In these circumstances, the church could easily prove by a preponderance of the
evidence "1) that the job qualification justifying the discrimination is reasonably
necessary to the essence of its business; and 2) that [sex] is a legitimate proxy for
the qualification because (a) it has a 'substantial basis for believing that all or
nearly all [women] lack the qualification."' 241 The BFOQ is a much more
satisfactory, narrow defense to Susan Rockwell's ordination lawsuit than the broad
ministerial exception.
The BFOQ solution would allow lawsuits against religious employers when they
discriminate against the women they hire. As Judge Becker wrote, "where an
employment decision is devoid of religious or doctrinal content, and is based solely
on sexism, we fail to see how the decision relates to the free exercise of
religion." 242 Thus the first ministerial exception case of Salvation Army minister
Billie McClure, who sued because she wanted equal pay to her male coworkers,
should have been litigated. An argument that religious organizations may
discriminate against the women they hire is simply another way of stating that
religious organizations do not have to obey the law.
management committee controlling apprenticeship or other training or retraining programs to
admit or employ any individual in any such program, on the basis of his religion, sex, or
national origin in those certain instances where religion, sex, or national origin is a bona fide
occupational qualification reasonably necessary to the normal operation of that particular
business or enterprise . . . .").
239. Dothard v. Rawlinson, 433 U.S. 321, 333 (1977) (emphasis in original) (quoting
Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir. 1971)).
240. SACRED CONGREGATION FOR THE DOCTRINE OF THE FAITH, DECLARATION INTER
INSIGNIORES ON THE ADMISSION OF WOMEN TO THE MINISTERIAL PRIESTHOOD (1976),
available at
http://www.doctrinafidei.va/documents/rc-concfaith-doc_19761015_inter-
insigniores en.html.
241. EEOC v. Boeing Co., 843 F.2d 1213, 1214 (9th Cir. 1988) (citation omitted).
242. Petruska v. Gannon Univ., No. 05-1222, 2006 U.S. App. LEXIS 13135, at *47 (3d
Cir. May 24, 2006) vacated on reh'g, 461 F.3d 294 (3d Cir. 2006), available at
http://www.ca3.uscourts.gov/opinarch/051222p.pdf.
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[Vol. 88:98 1
Under existing law, religious race discrimination poses a harder question
because Title VII prohibits employers from using race as a BFOQ.243 Medical
employers, for example, may not hire white workers because their patients prefer
them to blacks. 2 " What should happen if the Nation of Islam or the Church of Jesus
Christ of Latter-day Saints requires that its ministers be black or white? 245 The only
rationale left for the practice is that religions are free to disobey the law and may
discriminate on the basis of race.
Should the ministerial exception exist in order to allow churches to exclude
employees on the basis of their race? As in the gender context, the case law does
not involve blacks trying to become ministers in white churches or the reverse.
Instead employees sue for racial discrimination in churches that do not advocate it.
Those are the cases that the ministerial exception aborts.
Consider the circumstances of Father Justinian Rweyemamu, a "black African
ordained Catholic priest from Tanzania, East Africa,"2a whose race discrimination
case established the ministerial exception in the Second Circuit.247 Indeed, a
Connecticut court stated there could not be a "clearer case" of the need for judicial
abstention than Father Justinian's. 248 Father Justinian alleged that despite his ten
years experience as a diocesan priest and his five years of service at St. Bernard's
Church in Rockville, Connecticut, he was refused a promotion to administrator of
the parish and a less-qualified white deacon was appointed in his place. He also
claimed that he was harassed over his work for a nonprofit organization that
supported economic development for poor children. 249 Much later, after his initial
lawsuits were dismissed under the ministerial exception, he was fired from his
parish and sued for retaliation, defamation, tortious interference in business
relations, and intentional infliction of emotional distress; those claims were also
dismissed under the ministerial exception.250
In the retaliation lawsuit, the church argued it had "just cause" to remove Father
Justinian because there were "complaints regarding his homilies, complaints
regarding his interaction with parish staff," concern that his charitable work
243. See 42 U.S.C. § 2000e-2(e)(1) (mentioning religion, sex, and national origin but not
race as allowed for BFOQ).
244. Chaney v. Plainfield Healthcare Ctr., 612 F.3d 908 (7th Cir. 2010).
245. See Bethea v. Nation of Islam, 248 F. App'x 331 (3d Cir. 2007) (per curiam)
(pleading racial discrimination by Nation of Islam); Peterson v. Wilmur Commc'ns, Inc.,
205 F. Supp. 2d 1014 (E.D. Wis. 2002) (explaining that World Church of the Creator
believes in Creativity, which teaches white supremacy); Southern Poverty Law Center,
Active Christian Identity Groups, S. POVERTY LAW CTR. (2012), http://www.
splcenter.org/get-informed/intelligence-files/ideology/christian-identity/active hategroups
(identifying white-supremacist members of Christian Identity movement).
246. Rweyemamu v. Comm'n on Human Rights & Opportunities, 911 A.2d 319, 323
(Conn. App. Ct. 2006).
247. Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008).
248. Rweyemamu v. Conn. Comm'n on Human Rights & Opportunities, No.
CV054003388S, 2005 WL 2981758, at *2 (Conn. Super. Ct. Oct. 21, 2005) ("This case
could not present a clearer case wherein the courts and governmental agencies are mandated
and required to abstain or else violate the Free Exercise clause of our Constitution.").
249. Rweyemamu, 911 A.2d at 323.
250. Rweyemamu, 520 F.3d at 200-01.
2013]
1019
"interfered with his full-time parochial duties" and left him "not sufficiently
devoted to" his duties. 251 Another reason given was "the necessity of giving a
unified and positive witness to the people of the parish," 25 2 which may be another
way of saying that good priests do not file lawsuits.
Except for the last item, presumably that list also provided reasons why Father
Justinian failed to get the promotion over the white deacon. Notice that the core of
the defense was not the disputed theological content of the homilies, but the fact
that parishioners had complained about them. The other criticisms were about the
amount of time that Father Justinian put into his job. This is all evidence of whether
it was race or religion that motivated the employment decision. A jury could have
determined whether Father Justinian was fired for religious reasons or for racial
discrimination.
Post Hosanna-Tabor,Rweyemamu is an even clearer case of the ministerial
exception for two reasons. First, no one doubts he is a minister because he is an
ordained priest in a hierarchical church where priests have a different status from
nonpriests. Second, the Court ruled that ministers may be fired for nonreligious
reasons; Father Justinian may be fired for racially discriminatory reasons.
That is what the ministerial exception amounts to, namely a First Amendment
justification for disobeying the law even when it does not violate anyone's
conscience.
As noted above, in ruling for Hosanna-Tabor,the Court explicitly rejected the
EEOC's argument that Perich's case should be handled by the freedom of
association protected by the First Amendment. One advantage of relying on
association instead of religion is that "the right to freedom of association is a right
enjoyed by religious and secular groups alike."253 Another advantage is that,
because freedom of association protects expressive association,2 54 it forces
organizations to be clear about their membership rules and about what membership
in their organizations represents and expresses.255 It would be better to force
religious organizations to state openly their willingness to discriminate on the basis
of race, gender, disabilities, sexual orientation, national origin, and age than to give
them the free pass to disobey the laws for any reason that the Court awarded them
in Hosanna-Tabor.
251. Id.at 200.
252. Id.
(2012).
254. See Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
255. See Ira C. Lupu, Free Exercise Exemption and Religious Institutions: The Case of
Employment Discrimination,67 B.U. L. REv. 391, 436 (1987).

The Sins of Hosanna-Tabor - Scholarly Commons @ UNLV Law

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